Category: EEOC

January 24, 2020

2019 Sexual Harassment Charges Down at EEOC

On January 24, 2020, the U.S. Equal Employment Opportunity Commission disclosed its 2019 sexual harassment statistics. After a significant increase in sexual harassment charges in FY 2018, the EEOC reports a 1.2% decrease last year. Despite the year-over-year drop, 2019 still had the second-highest number of sexual harassment charges since 2012.

2018 Sexual Harassment Statistics

In Fiscal Year 2018, the EEOC received a total of 7,609 charges alleging harassment of a sexual nature. That represented more than a 13% increase in sexual harassment charges versus FY 2017. It was the first time the number of sexual harassment charges filed with the EEOC had increased in more than a decade.

FY 2019 EEOC Data

For the fiscal year ending September 30, 2019, the EEOC received 7,514 sexual harassment charges. This number represents 10.3% of all charges the agency received between October 2018 and September 2019.

The full break down of cases by nature of allegation follows:

Retaliation: 39,110 (53.8% of all charges filed)
Disability: 24,238 (33.4%)
Race: 23,976 (33.0%)
Sex: 23,532 (32.4%)
Age: 15,573 (21.4%)
National Origin: 7,009 (9.6%)
Color: 3,415 (4.7%)
Religion: 2,725 (3.7%)
Equal Pay Act: 1,117 (1.5%)
Genetic Information: 209 (0.3%)

(Total exceeds 100% because some charges allege multiple bases.)

Big Picture

It’s hard to tell whether the 2019 sexual harassment data indicate that the 2018 spike was an aberration. Another increase last year would not have been surprising, but a 1% drop after a 13% increase doesn’t suggest that sexual harassment is no longer a concern in U.S. workplaces. There were still many more sexual harassment charges filed with the EEOC in FY 2019 than in the five years preceding the launch of the #MeToo movement.

EEOC Sexual Harassment Charges

Fiscal Year Data as Reported by U.S. Equal Employment Opportunity Commission

Full EEOC charge-filing statistics are available here.

State-Level Claims

Many states have their own employment discrimination statutes and state agencies who process sexual harassment complaints. Many of these state (and some local) agencies have worksharing agreements with the EEOC. Such agencies, known as Fair Employment Practices Agencies (FEPAs), typically cross-file complaints with the EEOC.

The EEOC reports annual data on total sexual harassment charges, including those filed directly with FEPAs. However, this data may not encompass all state and local sexual harassment complaints. Some cases do not get timely registered with the EEOC or may be encoded differently at the state and federal level, for example.

The EEOC reports a total of 11,283 sexual harassment charges in FY 2019, combining cases filed with the EEOC directly and those reported from FEPAs. Or only a half-of-a-percent decrease from FY 2018.

EEOC & FEPA Sexual Harassment Charges

Fiscal Year Data as Reported by U.S. Equal Employment Opportunity Commission

An Ongoing Concern

With or without these statistics, it’s clear that workplace sexual harassment remains a problem and an area of focus for regulators. Many states are reviewing their sexual harassment laws and requirements regarding initiatives like policies and training. New York, for example, dramatically relaxed the burden of proof on employees in all workplace harassment cases through 2019 legislation (after imposing mandatory annual sexual harassment training for all employees the year before). The EEOC reports a 5.3% increase in sexual harassment complaints in New York in FY 2019 (including FEPA data).

No one wants their business to become part of these statistics. However, policies and training sessions can be only part of the solution. Employers must respond promptly and thoroughly to all allegations of harassment in the workplace. This includes addressing problematic behavior that has not reached the level of a formal complaint. Waiting to see if a situation gets is destined to be a failed strategy.

December 26, 2019

NLRB Restores Confidentiality in Workplace Investigations

A December 16, 2019 NLRB decision reinstated employers’ discretion to maintain confidentiality in workplace investigations. In 2015 the federal Labor Board had found that employees’ rights to communicate with each other generally trumped company secrecy in this area. The new ruling allows investigatory confidentiality to be the default, rather than the exception.

Previous Standard

In 2015, an Obama-era NLRB panel with a Democrat majority held companies to the burden of demonstrating a specific need for confidentiality regarding a particular investigation. In other words, the default was the employers could not force employees to keep quiet about an ongoing internal inquiry.

Under the Banner Estrella Medical Center ruling, employers could only require confidentiality upon affirmative evidence that:

witnesses need protection;
evidence is in danger of destruction;
testimony is in danger of fabrication; or
there is a need to prevent a cover-up.

In that decision, the Board found that, absent these factors, employees’ rights under Section 7 of the National Labor Relations Act outweighed company interests in preserving the integrity of an investigation. Section 7 of the NLRA protects employees who engage in concerted activity for their mutual aid and protection regarding terms and conditions of employment.

Concern with Lack of Confidentiality

A strenuous critique of the Banner Estrella Medical Center decision was that it was inconsistent with EEOC guidance encouraging confidentiality in workplace investigations. Specifically including investigations of sexual harassment, the EEOC has long emphasized that employer procedures for resolving internal complaints “should ensure confidentiality as much as possible. . . .”

Over the past few years, the EEOC and NLRB have attempted to reconcile their inconsistent stances. The new NLRB position eliminates the conflict between these federal agencies.

Changing the Presumption (Back)

The NLRB’s 3-1 decision in a case involving Unique Thrift Store once again permits employers to ask their employees to keep investigations confidential. They can do so as the default, without first evaluating prescribed criteria.

Unique Thrift Store maintained the following work rules for employees:

“Reporting persons and those who are interviewed are expected to maintain confidentiality regarding these investigations.”
“The following list . . . are examples of behaviors that . . . may lead to disciplinary action, up to and including termination . . . . Refusing to courteously cooperate in any company investigation. This includes, but is not limited to, unauthorized discussion of investigation or interview with other team members . . . .”

The Board majority overruled the Banner Estrella standard, in part, for its failure “to consider the importance of confidentiality assurances to both employers and employees during an ongoing investigation.”

Open Question on Investigatory Confidentiality Rules

The NLRB’s 2019 Unique Thrift Store decision didn’t actually determine whether the above rules are lawful. The Board withheld ultimate judgment in that regard because the rules themselves weren’t clearly limited to the duration of an investigation. In other words, they arguably required employees to keep quiet even after the company had completed its investigation.

The Board did not feel it had enough information to evaluate whether Unique Thrift Store had sufficient justification for requiring post-investigation confidentiality. So, it sent the case back down for further proceedings regarding that question.

Impact on Employers

Under this new ruling, companies can go back to directing employees to maintain confidentiality during an investigation. They can generally implement and enforce written rules to that effect. But they should be careful in the wording of such rules and directives. Requiring employees to stay silent even after an investigation has concluded may be more problematic. In that situation, your company should evaluate the specific circumstances and, ideally, consult with an experienced labor attorney.

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Click for the full decision in:

Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019)

Banner Health System d/b/a Banner Estrella Medical Center, 362 NLRB 1108 (2015)

May 4, 2019

EEO-1 Compensation Data Update

In April 2019, a federal judge ruled that all employers required to file the annual EEO-1 report must include 2018 compensation data by September 30, 2019. The court ruling left some open questions for employers regarding the EEO-1 compensation data requirements. The U.S. Equal Employment Opportunity Commission (EEOC) has answered some of those questions, as we’ll explain here.

What Is the EEO-1?

U.S. employers with at least 100 employees and some smaller companies with federal government contracts must file the EEO-1 each year. The annual reports identify numbers of employees by job categories and demographic characteristics.

The EEO-1 job categories are:

Executive/Senior Level Officials and Managers
First/Mid-Level Officials and Managers
Professionals
Technicians
Sales Workers
Administrative Support Workers
Craft Workers
Operatives
Laborers and Helpers
Service Workers

Within these job categories, employers must provide the number of employees based on sex and race/ethnicity from among these options:

Hispanic or Latino
White
Black or African American
Native Hawaiian or Pacific Islander
Asian
Native American or Alaska Native
Two or more races

EEO-1 Compensation Data Requirement

In February 2016, the EEOC modified the Form EEO-1 to include wage and hours data beginning March 31, 2018. In 2017, however, the Office of Management and Budget (OMB) informed the EEOC that it was suspending the new pay data collection requirements pending further review. This prompted litigation.

The plaintiffs in a lawsuit against the government prevailed. The judge is requiring the EEOC to collect the new EEO-1 compensation data from covered employers for at least two years. One of these years is 2018. The judge allowed the EEOC to decide whether the second year would be 2017 or 2019. The EEOC has selected 2017 as the second year.

For now, it’s not clear whether the EEO-1 compensation data requirement will continue beyond this year. It is possible that the EEOC will formally revise the forms going forward.

What Do Employers Need to Know?

1. What Is the Deadline for the 2018 EEO-1?

The filing period for the traditional EEO-1 survey (without the compensation data) ends May 31, 2019. Covered employers must submit the standard job category and demographic surveys by that date.

However, companies will have to submit separate new reports with the EEO-1 compensation data.

[Click here to file your EEO-1 or get more information directly from the EEOC.]

2. When Can We File the EEO-1 Compensation Data?

The EEOC expects to open filing for the new EEO-1 compensation data in mid-July 2019. When available, filers apparently will need to submit wage and hour information for both 2018 and 2017.

3. What Compensation Statistics Will We Need?

Employers will need to submit W-2 wage data and hours worked for employees within 12 specified pay bands:

<$19,239
$19,240-$24,439
$24,240-$30,679
$30,680-$38,999
$39,000-$49,919
$49,920-$62,919
$62,920-$80,079
$80,080-$101,919
$101,920-$128,959
$128,960-$163,799
$163,800-$207,999
$208,000+

Employers will report wages earned based on W-2 “Box 1” year-end earnings and hours worked.

Hours worked will be actual hours for non-exempt employees. For exempt employees, employers can report an estimate if they do not maintain actual time records. The estimate will be computed at 40 hours per week for full-time exempt employees and 20 hours per week for part-timers. Employers will report aggregate hours for all employees in each pay band and job category by ethnicity.

Employer Concerns

One concern many employers have is how much hassle it will be to satisfy this new filing requirement. That answer depends on factors like the size of the workforce and sophistication of the payroll system. Some companies will be able to generate the data quickly from computers. Others will have to analyze individual employee records to compile the necessary EEO-1 compensation data.

Another question is how the EEOC will use this new information. For various reasons, the limited aggregated payroll data might not give an accurate snapshot. Yet, the EEOC may use the numbers to evaluate potential discrepancies along gender, racial, or ethnic lines. Although the EEOC probably will not make every employer’s EEO-1 compensation data public, the reports could come out in litigation. This may include use by private plaintiffs whose attorneys could obtain the data from the EEOC by subpoena, for example.

Don’t Wait for July!

Employers who will have to file the new EEO compensation data should not wait until July to prepare. Companies should at least evaluate their ability to generate the information necessary when the filing period opens. Plus, employers should start analyzing whether the data is going to paint a picture that might cast their compensation practices in a bad light. If so, they might want to review and modify their practices or start preparing the explanation for why the EEO-1 report is misleading, as many will be given many statistical limitations in the way employers must report on wages.

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