FY 2019: EEOC Trends in the Two Years Following the #MeToo Movement

By Christopher M. Lewis

On October 15, 2017, actress Alyssa Milano inspired millions of people around the globe with a simple, yet powerful, tweet:

If you’ve been sexually harassed or assaulted write “me too” as a reply to this tweet.

In the two-years following that call-to-action, the #MeToo movement—for better or worse—has had an undeniable effect on the collective consciousness of employers and employees alike. But has the momentum stalled?

In January 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) released its Fiscal Year 2019 Enforcement and Litigation Statistics. On the surface, these statistics show that the total number of sex-based discrimination claims decreased by more than 1,000 claims between FY 2018 and FY 2019. Yet a deeper dive into the statistics shows that the #MeToo movement is still affecting a significant portion of employers across the country.

Now, the challenge for employers is determining whether the drop in these claims coincides with a larger trend. And, if so, what should be anticipated as we enter FY 2020. As one may expect, the answer is nuanced.

I. FY 2019 HAD THE FEWEST TOTAL CHARGES SINCE 1997.

As a threshold matter, it is important to understand the trends that preceded the current statistics. During the Great Recession, the total number of charges of discrimination filed with the EEOC spiked from 82,792 to 99,922 from 2007 to 2008, respectively. Thereafter, the total number of charges hit an all-time high in 2011 with 99,947 charges filed in that year alone. From there, however, charges have steadily declined with 72,675 filed in FY 2019.

The amount of total charges filed in FY 2019 represents the fewest since the EEOC began tracking these figures in 1997. Yet the percentage of charges claiming discrimination based on sex has reached its own all-time high. In fact, the EEOC reports that 32.4% of all claims filed included a sex-based claim of discrimination. This figure is a slight increase from 32.3% of all claims filed in FY 2018—the pinnacle of the #MeToo movement.

Reports of these statistics are somewhat paradoxical, however. As recognized by the EEOC, statistics regarding harassment in the workplace are:

[B]oth an over-inclusive and under-inclusive data source for determining the prevalence of harassment in our workplaces. It is presumably over-inclusive because not all charges and complaints of harassment include the type of behavior [the EEOC] considers harassment . . . Conversely, the number is presumably under-inclusive because approximately 90% of individuals who say they have experienced harassment never take a formal action against the harassment, such as filing a charge or complaint.

Indeed, prior to the #MeToo phenomenon, the EEOC’s Select Task Force on the Study of Harassment in the Workplace reported that “[t]he least common response of either men or women to harassment is to take some formal action—either to report the harassment internally or file a formal legal complaint.”

As we enter the next decade, the question becomes whether the frequency of sex-based discrimination claims will continue to increase, or whether other types of discrimination will be en vogue in an increasingly litigious area of the law.

II. EMPLOYERS SHOULD PAY SPECIAL ATTENTION TO RETALIATION CLAIMS IN FY 2020.

Sex-based discrimination claims have dominated social media and news outlets for the better part of two-years. In response, employers have made concerted efforts to recognize, train, and respond to allegations of sexual harassment in the workplace. Indeed, the #MeToo movement precipitated wholesale overhauls in both internal investigations and policies, which is a commendable endeavor. But what happens after an employee complains of sexual harassment or discrimination? The EEOC’s statistics suggest that despite the best efforts of employers, these claims remain perilous even after the initial complaint due to the potential for perceived or actual post-complaint retaliation.

            While the total number of charges of discrimination has decreased over the past decade, retaliation claims are one of three types of charges (the others being sex and color) that have been on a steady increase in prevalence. In FY 2010, 36.3% of EEOC charges were based on retaliation. By FY 2019, that number rose to 53.8%—the largest increase in any category. Specifically, the EEOC reports that 39,110 charges for retaliation were filed in FY 2019. This figure is especially troublesome for employers given that the EEOC finds discrimination in approximately 40% of these claims.

            The FY 2019 statistics reveal just how imperative it is for employers to educate their employees on retaliation in the workplace, even if the overall amount of sex-based complaints is declining. Indeed, even if an underlying claim is non-actionable, retaliating against a complainant can expose an employer to thousands, if not millions, of dollar in damages.    

It is essential that employers resist the allure of complacency in light of the decline in sex-based discrimination claims. Instead, employers must continue to diligently train their employees on the risks and liabilities associated with retaliation, and other protected acts, as we move into FY 2020. As evidenced by the EEOC’s statistics, this steadily-increasing area of litigation will only pose an increased threat as time goes on.

III. GENDER AND SEXUAL ORIENTATION DISCRIMINATION MAY BE THE NEW FRONTIER OF EEOC CLAIMS IN FY 2020. 

Notably, the EEOC has recently argued extensively for inclusion of gender and sexual orientation as bases for discrimination. Thus, while not currently included in the EEOC’s statistics, it is important that employers pay close attention to several cases before the United States Supreme Court. These include: Altitude Express, Inc. v. Zarda (Docket No. 17-1623); Bostock v. Clayton County, Georgia (Docket No. 17-1618); R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (Docket No. 18-107). Depending on their outcomes, these cases may very well have a substantial effect on charges of discrimination filed with the EEOC in FY 2020 and beyond.

In sum, while the #MeToo movement has slowly dissipated from the 24-hour news cycle, the ripple effects it has caused have been felt in the two-years since its popularization, and will continue to effect employers as we move further into FY 2020. Until the Supreme Court decides the aforementioned cases, employers should simultaneously celebrate their progress in curbing workplace discrimination, and to also work towards ensuring that newly empowered individuals are not retaliated against for making complaints of discrimination.