Tag: coronavirus

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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November 17, 2021

What Does OSHA’s COVID-19 ETS Mean for New York Employers? (Webinar Recap)

On November 16, 2021, I presented a complimentary webinar entitled “What Does OSHA’s COVID-19 ETS Mean for New York Employers?”. 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:

Covered Employers & Employees
Policy & Notice Requirements
Testing Option
Paid Leave
HERO Act Implications
Legal Challenges

In light of recent court action, it’s still unclear whether OSHA’s Emergency Temporary Standard targeting employers with 100 or more employees will ever take effect. But if it does, employers may have a very short window to prepare for compliance.

Many of the COVID-19 ETS requirements could be in place as soon as December 6, 2021. And full compliance, including weekly testing for any unvaccinated employees, is set for a January 4, 2022 deadline.

Make sure your organization is prepared to comply if necessary.

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

Why You Should Watch “What Does OSHA’s COVID-19 ETS Mean for New York Employers?”

It is frustrating that you must prepare to comply with this OSHA mandate that the courts may block from ever taking effect. But, since there is a chance the COVID-19 ETS will survive legal challenge, it’s critical to be ready for the possibility.

Most employers with 100+ employees would be covered. But not all. Make sure you know what requirements may apply to your organization.

And there’s more to it than just requiring that all employees either become vaccinated or test weekly for COVID-19. The ETS also requires employers to maintain a record of all employees’ vaccination status, exclude workers who test positive for COVID-19, pay employees for time off related to vaccinations, and more.

Plus, being subject to the OSHA COVID-19 ETS would have implications under the NY HERO Act. And there would be bargaining obligations for most unionized employers!

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.

September 7, 2021

Airborne Infectious Disease Exposure Prevention Plans Triggered by COVID-19

On Labor Day 2021, Governor Kathy Hochul announced that the COVID-19 resurgence warrants implementing the safety plans required by the New York HERO Act. The law permits the NYS Commissioner of Health to invoke airborne infectious disease exposure prevention plans across all private-sector workplaces. To do so, the Commissioner must declare that a highly contagious communicable disease presents a serious risk of harm to the public health. The HERO Act became law as a result of the coronavirus pandemic earlier in 2021. However, it was intended to apply to future outbreaks. COVID-19 was seemingly under control at that point. Yet, the latest transmission rates prompted the invocation of the new law for the pre-existing disease.

The initial designation is effective until September 30, 2021. The Commissioner of Health will review whether to extend it at that time.

Private Employers Must Implement Their Plans

The NY HERO Act only applies to private (non-government) employers. The airborne infectious disease exposure prevention plan requirements apply to all New York entities with at least one employee. Employers had to adopt a compliant plan by August 5, 2021. But at that time the plans were effectively dormant pending a Commissioner of Health declaration that has now come.

For more on plan requirements, click here.

Plan Review

The initial plan requirements (and template plans) from the NYS Department of Labor were relatively vague. It was challenging to detail appropriate measures for combating an unknown future disease.

But now we know a lot about the disease prompting plan implementation: COVID-19. Or at least, we have nearly 18 months of experience trying to prevent the spread of this disease.

Employers should reevaluate their plans based on their previous experience with COVID. Revisions to the plan itself may not be necessary. But past efforts should at least guide the current implementation of your airborne infectious disease exposure plan.

Reviewing the Plan with Employees

Employers must now conduct a verbal review of:

employer policies;
employee rights under section 218-b of the NYS Labor Law; and
their airborne infectious disease exposure prevention plan.

This review should be done “in a manner most suitable for the prevention of an airborne infectious disease.” Options suggested by the DOL include in-person with good ventilation and face masks or via audio/video conference technology.

Employers must also provide a copy of their plan to all employees as implemented. Some employers may need to provide the plan in Spanish to employees for whom that is their primary language. (Additional languages may be required when the DOL provides model plans in that language.)

Ensuring Ongoing Compliance

While the airborne infectious disease exposure prevention plan remains in effect, employers must continually ensure that it is followed.

Companies must:

assign enforcement responsibilities to supervisory employees and ensure adequate enforcement;
monitor and maintain exposure controls; and
regularly check for updated information and guidance from the NYS DOH and the CDC.

Mandatory Controls

Although employers have discretion in many aspects of their plans, the DOL standard requires the following components:

Health Screening

As under previous NYS reopening guidance, employers must again screen employees for COVID-19 symptoms at the beginning of each workday.

You must then follow applicable protocols regarding testing, isolation, and quarantine before allowing symptomatic or infected employees to return to work.

Face Coverings

Companies must provide appropriate face coverings to all employees at no cost.

Employees must wear face coverings when physical distancing is not possible, following DOH and CDC guidelines.

Physical Distancing

Physical distancing must be used when possible to keep employees at least 6 feet apart.

Hand Hygiene

Employers must provide handwashing facilities and/or hand sanitizing supplies.

Cleaning and Disinfection

Each company must have a plan for cleaning and disinfection that includes the methods of decontamination based on relevant workplace factors.

Following DOH and CDC Guidelines

The NYS DOL’s airborne infectious disease exposure prevention standard compels employers to follow guidance from the NYS DOH and the CDC. It seems that much of the current CDC guidance is permissive rather than compulsory. So it’s unclear whether New York employers must now satisfy all CDC suggestions or only strict requirements. Furthermore, it’s possible that the DOH will issue updated guidance due to the renewed declaration. In essence, this may eventually be a method of returning to the 2020 regime where the State established the conditions under which businesses could operate. But in the meantime employer’s exact obligations remain somewhat uncertain, unfortunately.

As always, you can follow Horton Law on LinkedIn for the latest news and updates on COVID-19 compliance, the NY HERO Act, and other topics of interest to New York employers.