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November 28, 2018
Parsons Behle & Latimer Legal Briefings

The Equal Employment Opportunity Commission (EEOC) has released its preliminary fiscal year 2018 assessment claims.  Not surprisingly, given the flood of high-profile substantiated sexual harassment claims over the past year-and-a-half, the number of claims has increased by more than 12 percent from 2017, marking this the first time in more than a decade that the EEOC has had an increase in sexual harassment claims. Even more surprising is sexual harassment lawsuits filed by EEOC attorneys increased 50 percent from 2017, to 41 cases. Of the cases fully investigated by the EEOC last year, the commission issued reasonable cause findings in nearly 1,200 cases – an increase of more than 23 percent. Successful conciliation agreements where the parties participated in a formalized mediation process and reached an enforceable agreement rose from 348 to nearly 500 – a 43 percent increase. Finally, monetary reward recovery for victims amounted to $70 million, a 22 percent increase from 2017. The EEOC also reported an increase in public interest in its sexual harassment enforcement efforts, demonstrated by more than twice the number of visits to its website over the previous year.

Western region statistics are similar to EEOC findings., reporting that discrimination charges filed in 2017 increased more than a third. The largest jump was in retaliation complaints in which an employee reported experiencing or witnessing discrimination based on a protected class such as sex, race, age, disability or pregnancy and the company or manager took an adverse action against the employee. In 2017, retaliation complaints increased by 66 percent over 2016.  Retaliation complaints may be increasing due to employees reporting harassment or discrimination to their employer. Retaliation complaints may also be increasing because they are generally easier to substantiate than discrimination or harassment and because the underlying complaint of discrimination or harassment does not need to be substantiated. An employee need only show that he or she complained, reported or participated in an investigation of discrimination or harassment and was then punished or suffered some other adverse action. The employee need not prove the reported or complained-of behavior was discrimination or harassment. 

Generally, employees file with state antidiscrimination and labor divisions because the investigation process starts more quickly and because these divisions have greater initial jurisdiction over employers to fine them or force them to, for example, reinstate an employee, engage in training or pay the employee back pay or compensation. The EEOC does not wield that statutory authority over an employer. For example, if the EEOC issues a finding that discrimination occurred, it cannot force the employer to take action unless the employer willingly agrees to terms in a conciliation agreement. Normally, the EEOC either decides to bring a lawsuit on behalf of the claimant (unusual) or the claimant decides to take the EEOC’s finding and hire an attorney to bring a claim on his or her behalf. 

Moreover, the number of filings do not reflect outcomes or the viability of the claims asserted. Many of the charges filed are settled in an initial mediation without any investigation. Of the charges that are fully investigated, few are found to have merit.


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