Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

March 31, 2022

2021 EEOC Charges Show Decline in Most Categories

The number of employment discrimination claims filed with the U.S. Equal Employment Opportunity Commission continued a steep decline in 2021. At the lowest level in at least several decades, data from the past two years suggests that COVID-19 contributed to the reduction. But a review of 2021 EEOC charges reveals some interesting trends that may be unrelated to the pandemic.

FY 2021 EEOC Charges

The latest annual data refer to the 12-month fiscal year ending September 30, 2021. The EEOC received 61,331 charges of employment discrimination during this period. The charges span several federal laws, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Equal Pay Act, and the Genetic Information Non-Discrimination Act (GINA).

More than half (56%) of the charges included a retaliation claim, often in addition to claims based on other protected characteristics.

Here is the percentage of total charges that asserted discrimination based on those other characteristics:

Disability – 37.2%
Race – 34.1%
Sex – 30.6%
Age – 21.1%
National Origin – 10.1%
Color – 5.7%
Religion – 3.4%
Equal Pay – 1.4%
Genetic Information – 0.4%

Totals exceed 100%, as charges can allege more than one category.

Harassment charges, which can be based on any protected characteristic, also continued to fall in FY 2021, even as a percentage of all claims. Of the total EEOC charges filed last year, 21,270 (34.7%) included a harassment claim. In 2020, 35.9% of charges included a harassment allegation.

Downward Trend

Since Democratic administrations are seen to be more employee-friendly than Republican ones, it is interesting to review these data in line with the party in control of the White House (and, correspondingly, the EEOC). Annual EEOC charges began to decline following the transition from the presidency of Barack Obama into the Trump Administration. After consistently measuring near or above 90,000 cases per year under President Obama, total EEOC charges have declined each year since Donald Trump was elected. Of course, this now includes the beginning of Democrat Joe Biden’s presidency.

Sexual Harassment Charges in 2021

Claims of sex-based harassment fell to 10,035, down 13.1% from the FY 2018 peak sparked by the #MeToo movement. That number includes all charges alleging harassment related to one’s sex (treating people of one sex less favorably than others). The EEOC separately tracks harassment of a sexual nature.

Charges alleging harassment of a sexual nature also fell to the lowest level in the 25 years of data reported by the EEOC. The agency received 5,581 such charges in FY 2021, down 26.6% from 2018, and 29.7% from 2010.

What’s Going On?

While there are many possible explanations for the decline in charges, it is hard to ignore the potential impact of the COVID-19 pandemic over the past two years. With less workers on-site, there may simply be fewer opportunities for employees to feel harassed. A relative labor shortage could also be a factor. If employees who think they have been terminated from their jobs for a discriminatory reason quickly find new employment, they may be less likely to file a claim against their former employer. Enhanced unemployment benefits may have also generated a similar effect.

Of course, it would be great if the decline in charges corresponds to a reduction in actual instances of harassment or other discrimination. However, the data do not readily enable an analysis of whether that may be the case.

Digging Into the 2021 EEOC Charge Statistics

What may we be able to find out from the data on 2021 EEOC charges?

All statistics used for this article are available here.

Race/Color Discrimination

The EEOC reports 20,908 charges alleging race discrimination in FY 2021. That’s easily the fewest such claims in the history of the EEOC dataset going back to 1992, representing a 41.7% drop since the peak a decade earlier in FY 2010.

However, charges based on color discrimination have been increasing. In FY 2020, 5.7% of charges (3,516) included a claim of color discrimination–the highest level ever for such claims on a percentage basis. The reasonable assumption is that more employees are raising color discrimination claims instead of race discrimination. Yet, employees can claim discrimination based on both race and color. So, the increase in color discrimination claims doesn’t necessarily explain the reduction in race discrimination claims.

LGBTQ+ Discrimination

EEOC charges based on sexual orientation or transgender status have also increased in the past five years. This trend may not be surprising in light of a shift in judicial acceptance that these characteristics are protected under federal employment discrimination laws. The U.S. Supreme Court only held that Title VII prohibits discrimination based on sexual orientation and transgender status in June 2020.

Other Categories

Charges alleging discrimination based on sex, religion, age, and disability all declined in FY 2021 (as in 2017-2020). But the declines were roughly proportionate to the overall case volume.

Looking Ahead

The (hopeful) end of COVID-19 restrictions could affect EEOC filings next year. Likewise, Democrats will take complete policy-making control over the EEOC after the term of the next Republican on the commission expires in July 2022. This shift could lead to more aggressive enforcement of the federal employment discrimination statutes.

However, there is some room for optimism that whether due to COVID-19’s permanent impact on the workplace or other causes, harassment and discrimination are becoming less prevalent. Nonetheless, an overall trend is no solace if your company suffers the consequences of employment discrimination claims. As ever, employers should be proactive in preventing discrimination. Anti-harassment training is one viable approach. Effective hiring practices, training, and supervision are also critical.

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March 29, 2022

New York Employment Discrimination Update (Webinar Recap)

On March 29, 2022, I presented a complimentary webinar entitled “New York Employment Discrimination Update”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

Legislative Developments
Agency Procedures
Trends & Statistics
Requirements & Precautions

and much more!

New York Governor Kathy Hochus recently signed new state laws designed to increase employee protections against employment discrimination. This webinar discusses these amendments, plus additional pending legislation. How will the new laws affect employers?

The webinar also addresses recently released data on federal employment discrimination charges filed with the EEOC. Learn about a decline in claims and what it may mean.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “New York Employment Discrimination Update”

There are specific new provisions that New York employers should become aware of, including a new form of retaliation based on release of employee personnel files. The New York Division of Human Rights must also create a new sexual harassment complaint hotline to assist employees in filing claims. Proposed legislation that may be coming next would require even more dramatic changes to employer practices.

The presentation includes analysis of data from the EEOC for fiscal year 2021. We discuss the operational and filing trends and what they may suggest about the prevalence of employment discrimination and employee motivations to assert claims.

This subject is not going away, and the likelihood of liability for New York employers may be increasing. Thus, we also consider the difference between required preventative measures and options to better protect your organization from employment discrimination.

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Law email newsletter to be among the first to know when registration is open for upcoming programs! And follow us on LinkedIn for even more frequent updates on important employment law issues.

March 18, 2022

Continued Expansion of New York Worker Discrimination Laws

On March 16, 2022, New York Governor Kathy Hochul signed legislation aimed at protecting employees from sexual harassment and other forms of employment discrimination. The amendments modify the New York Human Rights Law, which serves as the primary source of New York worker discrimination laws. Some provisions took effect immediately (if not sooner!). A requirement for a new hotline will take effect later this year.

Covered Entities & Workers

One amendment “clarifies” the definition of “employer” under the Human Rights Law. The pre-existing definition was simply and broadly defined to include “all employers within the state.”

In some cases, courts have concluded that this wording did not sufficiently extend the Human Rights Law’s protections to the staff of elected officials or attorneys working for state judges. Accordingly, the law now expressly states that “the state of New York shall be considered an employer of any employee or official, including any elected official, of the New York state executive, legislature, or judiciary, including persons serving in any judicial capacity, and persons serving on the staff of any elected official in New York state.”

The amendment similarly addresses local government entities. It provides that “a city, county, town, village or other political subdivision of the state of New York shall be considered an employer of any employee or official, including any elected official, of such locality’s executive, legislature or judiciary, including persons serving in any local judicial capacity, and persons serving on the staff of any local elected official.”

Rather than merely take effect immediately, this amendment provides that it took effect upon enactment of a previous revision to the Human Rights Law’s definition of employer in 2019. It’s not clear whether courts will actually apply the new definitions retroactively,

Personnel Records Retaliation

In addition to discrimination based on certain personal characteristics, the Human Rights Law prohibits retaliation against individuals who raise discrimination claims or otherwise participate in efforts to redress discrimination. Retaliation is a broad concept under the law. But there is now an express provision ensuring that one form of employer conduct will qualify.

Effective immediately, an employer may not retaliate against a protected employee by disclosing the employee’s personnel files. There is an exception for disclosure in a legal proceeding. But, otherwise, any release of employee information arguably violates the law. This amendment may limit an employer’s ability to publicly dispute even demonstrably false claims by former employees who have alleged discrimination.

Prosecutorial Authority

The New York Attorney General now has the authority to sue an employer for workplace retaliation. This amendment doesn’t prevent an employee from doing so directly in the courts or through a government agency. But it creates a new avenue for prosecuting employers whose employees choose not to make a retaliation claim. This new provision may even permit the Attorney General to pursue a claim where the employee involved has already settled their dispute with the employer.

Sexual Harassment Complaint Assistance Hotline

By July 14, 2022, the New York State Division of Human Rights must establish a confidential hotline “to provide individuals with complaints of workplace sexual harassment counsel and assistance.” The hotline will be available at least during regular business hours from 9:00 a.m. to 5:00 p.m.

The amendment specifies that the hotline will provide a means for workers to connect with “attorneys experienced in providing counsel related to sexual harassment matters who can provide pro bono assistance and counsel.” The attorneys who participate may not solicit the workers they speak with to retain them for representation in the discussed sexual harassment complaint.

While well-intended, there are some questions regarding the logic of this requirement.

First, how willing are such “experienced” attorneys going to be to provide free advice without the possibility for remuneration? Most likely, participating attorneys will typically be pointing employees to file a complaint with the Division of Human Rights. That is effectively the same result as the current scenario where an employee contacts the Division regarding sexual harassment allegations.

Second, why limit the hotline to sexual harassment, which is just one form of employment discrimination prohibited under the New York worker discrimination laws? And most lawyers experienced in sexual harassment claims also handle other forms of discrimination. And, interestingly, the wording of the law doesn’t specifically prohibit the pro bono attorneys from representing (for compensation) the employees who call in claims outside of sexual harassment. Could that create a peculiar incentive for the attorneys to discourage sexual harassment claims in favor of others they may have?

Once in place, information about the hotline will be a component of required employee rights notices and postings.

Complying with Worker Discrimination Laws

These are just the latest developments among a recent trend of stricter worker discrimination laws in New York. Employers must continually focus on preventing harassment and discrimination before it occurs and remedying it as soon as possible if it does. While introducing comparatively few affirmative obligations, these amendments will at least incrementally increase the risk of claims. Strong anti-discrimination policies and training are among the best available measures to avoid improper workplace conduct. But sound overall human resources practices are critical in that mission.