In March this year, the federal Equal Employment Opportunity Commission (“EEOC”) issued its annual performance report. The EEOC pointed to a “significant increase” in the number of charges filed in the 2022 fiscal year compared to the prior year—about a 20 percent spike. According to agency data, 2021 was a low point in filed charges, with only about 61,000 filed. In comparison, there were about 91,500 charges filed in the financial year 2016. Of the total charges, interestingly, over 10,000 of them alleged discrimination related to COVID-19.
Although the agency is tardy in reporting detailed charge data, the performance report noted that 18.6 percent of charges were resolved on the merits, with favorable outcomes to the charging party. In fiscal year 2022, the EEOC reported that it secured $342 million for private sector and state and local government employees through mediation, conciliation, and settlements, plus almost $40 million for 1,461 individuals after litigation. Of particular interest to employers is that of the merits lawsuits in federal district courts, the EEOC achieved a favorable result in nearly 95% of all resolutions.
What is the upshot for employers? First, charges are on the rise, so employers must be aware and adjust their practices, policies, and strategies accordingly. Second, while it is rare for the EEOC to pursue a given charge, much less go to litigation, involvement by the EEOC should give employers serious concern, and the odds are not in an employer’s favor should the EEOC decide to file litigation. Given these statistics, responding to the charge aggressively during the initial phases is crucial. The importance of a thorough and high-quality position statement cannot be understated. This is not the place for employers to “wing it” without an attorney’s assistance.
If your company is facing a charge of discrimination, contact an experienced employment attorney right away. It is important to ensure that your company has put itself in the best position possible when faced with the unpleasant reality of defending such a case.