2015 EEOC Charge Statistics: What Do They Reveal for 2016

eeocOn February 11, 2016, the Equal Employment Opportunity Commission (EEOC) released a detailed breakdown of charges filed during its fiscal year 2015.
The overall number of charges stayed shy of 90,000 at 89,385, slightly above the 88,778 filed in 2014, but well below the 99,947 filed in 2011. This continues a trend of fewer charges against employers in recent years.
The number of retaliation charges shows a different trend, however. Retaliation comprises 44.5 percent of all charges, a jump from 42.8 percent in 2014. This continues a trend that has seen retaliation, as a percentage of the total charge numbers, increase from 29.5 percent in 2005 to nearly 45 percent today. If the trend continues, retaliation will comprise half of all the EEOC charges before 2020.
Amazingly, retaliation charges have continued to increase even though EEOC charges have dropped by more than 10 percent in the last five years. One reason is retaliation claims are fact-based, making them more difficult to dismiss with pre-trial motions. As a result, trial attorneys are characterizing more claims as retaliation or adding retaliation to other claims in order to make it past summary judgment.
Another reason is the whistleblower phenomenon in which more and more employees are reporting wrongdoing. Most whistleblower termination claims are characterized as retaliation. As the number of whistleblowers increases, so will the number of the retaliation claims.
Also making a large jump are disability charges. The number of disability claims rose from 25,369 to 26,968 in 2015, a six percent increase. 2015 broke the record for the number of disability claims in total (26,968) and as a percentage of charges (30.2 percent). The reason is uncertain, but an aging workforce and a broad definition of “disability” are most likely the reasons.
Harassment charges also increased from 26,820 in 2014 to 27,893 in 2015, an increase of four percent, and the most harassment charges filed since 2010. While overall harassment charges rose in 2015, sexual harassment charges fell slightly in 2015, and sexual harassment charges filed by males also fell.
While retaliation, disability and harassment charges increased, traditional discrimination charges decreased. Traditional discrimination charges like race (31,027), national origin (9,438), age (20,144) and religious discrimination (3,502) charges fell again in 2015, continuing a general trend started in 2012.
Surprisingly, the bottom fell out of GINA (Genetic Information Nondiscrimination Act of 2008) charges as they dropped 22 percent from 2014 to 2015. This stops a trend of GINA claims rising year after year. The reversal puts the 2015 charge number of 257 slightly ahead of the 2011 charge number of 245 and well below the high of 333 experienced in 2013 and 2014.
As for charges related to sex, gender discrimination charges ticked up slightly from 2014 to 26,396 from 26,027 in 2014, and Equal Pay Act charges increased almost four percent from 2014. The rise of gender discrimination charges will continue to increase because of the EEOC’s expansion of equal protection rights related to sexual orientation and gender identity.
So, what can employers expect in 2016?
*       Overall charges may rise slightly in 2016 especially if the economy continues to slow down and as the EEOC continues its hard press to litigate sexual orientation and gender identity charges.
*       Expect retaliation charges to increase in 2016 and surpass 45 percent of the total of all charges.
*       Disability charges will continue to increase in 2016 as a result of an expanded definition of “disability” and an aging workforce.
*       Traditional charges like race and religious discrimination will continue to decrease or remain flat.
*       National origin discrimination charges may remain flat, but if terrorism attack concerns continue, there may be an uptick.
*       If the economy continues a downturn, employers should expect that age charges will increase in 2016 as older workers bring more charges related to terminations and reductions-in-force.
*       Expect harassment charges to remain flat or slightly increase in 2016.
*       GINA will remain a low risk for employers as compared to retaliation and disability charges.
*       Gender discrimination charges may increase steadily as the EEOC broadens equal protection rights to include sexual orientation and gender identity charges.
*       Equal Pay Act charges will most likely continue the slow rise as gender pay issues become a centerpiece of the election year.
*       If you want to follow day-by-day how litigation risk is shaping up for 2016, follow us on Twitter at twitter.com/McCalmonGroup.

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