Tag: race discrimination

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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February 23, 2019

New York City Styles Hair Discrimination

On February 18, 2019, the New York City Commission on Human Rights released enforcement guidance about discrimination based on hair. “Hair discrimination” is not per se illegal under either New York State or New York City law. However, this guidance notes that race discrimination, especially anti-black discrimination, takes many explicit and implicit forms. Thus, the New York City Commission’s guidance explains that discriminating against someone because of their hair can constitute employment discrimination.

This appears to be the first legal guidance of this nature in the United States. It focuses on “anti-Black” hair discrimination.

What Is “Hair Discrimination”?

The new guidance proclaims that:

“The New York City Human Rights Law (“NYCHRL”) protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.”

The guidance contains more detail, noting “this includes the right to maintain natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”

Source of Legal Protections

The New York City Human Rights Law does not specifically prohibit hair discrimination. It does broadly prohibit race discrimination in employment and other areas.

This guidance from the New York City Commission on Human Rights does not modify the law itself. Instead, it addresses how discrimination based on hairstyle implicates existing protections. In addition to race, the guidance mentions prohibitions against religion, disability, age, and gender-based discrimination. If an employer uses hair as a proxy for any of these protected characteristics, their actions might violate the NYCHRL. But the guidance focuses on race, and specifically Anti-Black, discrimination.

The NYCHRL applies to employers in New York City with at least 4 employees.

The separate New York State Human Rights Law covers employers throughout the entire State. Though similar legal arguments might be available under the State law, this guidance only pertains directly to the NYC law.

Black Hairstyles as Protected Characteristics

Again, the NYC Commission on Human Rights hasn’t actually changed the law itself. An employee who tries to file a complaint based on their hair will still need to check a different box, such as “race,” as the basis of the discrimination. Nonetheless, this enforcement guidance does go so far as to assert that “Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.”

The full scope of this newly identified protection remains uncertain. Employers defending against claims based on hair discrimination will likely challenge aspects of the guidance in the future.

According to the guidance: “There is a strong, commonly-known racial association between Black people and hair styled into twists, braids, cornrows, Afros, Bantu knots, fades, and/or locs, and employers are assumed to know of this association.”

Does this mean that employment decisions based on these hairstyles are automatically discriminatory?

Impact on Employee Grooming Policies

There’s little doubt from reading this new guidance that the NYC Commission on Human Rights takes a very broad view on hair discrimination prohibitions. Despite allowing that an employer might have legitimate business reasons for requiring employees to have neatly groomed hair, virtually any restriction that disadvantages anyone with a hairstyle “associated with Black communities” will be legally suspect. To this end, the guidance observes, “an employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.”

[Click here to review the full guidance document.]

What Does This Mean for New York Employers?

As the New York City Commission on Human Rights concludes in this guidance, employers within NYC should promptly review their grooming and appearance policies. The Commission further encourages employers to “ensure [these policies] are inclusive of the racial, ethnic, and cultural identities and practices associated with Black and historically marginalized communities.”

Outside of New York City, employers throughout the State should still heed this guidance as a warning. The New York State Division of Human Rights has not issued related guidance on this topic. But it may proceed with similar enforcement sentiments. The state employment discrimination laws protect the same underlying characteristics (including race) that the NYC Commission relies on to ban hair discrimination.

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March 21, 2018

Association Discrimination in Employment

Most employers know they can’t discriminate against employees based on the employees’ own legally protected characteristics. But they may not realize that the same laws often also prohibit “association discrimination,” or “relationship discrimination.” In other words, employers can’t discriminate based on an individual’s association with someone in a protected class.

Forms of Association Discrimination

The employment discrimination laws don’t always expressly identify what forms of association discrimination they proscribe. The courts have recognized forms of this protection by applying more general aspects of the laws.

An employee may be able to claim harassment or discrimination based on:

a relative’s disability;
open association with or marriage to someone of a different race;
being a parent or caregiver to children; and
the protected activities of a relative.

Association Discrimination Under the ADA

The Americans with Disabilities Act (ADA) is one law that contains express provisions about association discrimination. The ADA covers all employers with at least 15 employees.

The ADA provides that no employer may “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

Among the forms of discrimination it expressly prohibits is “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”

The ADA requires no familial relationship for an employee to receive this protection. The protection depends on whether the relationship of whatever type motivated the employer’s action.

Association discrimination does not afford all of the same protections under the ADA as it does to an employee who personally has a disability. Most notably, employers do not have to provide accommodations to employees (or applicants) based on the disability of a relative.

Association Discrimination Based on Race

Title VII of the Civil Rights Act of 1964 prohibits employers with 15+ employees from discriminating on the basis of race, color, sex, religion, and national origin. Unlike the ADA, Title VII does not contain any specific provisions about association or relationship discrimination. However, many courts have recognized such protections regarding race.

Here are some examples of actual cases where a court recognized a theory of racial association discrimination:

White man alleged he was fired because of his marriage to a black woman.
White woman alleged she lost her job because the employer disapproved or her social relationship with a black man.
Employee alleged that employer reacted adversely to him because his race differed from his daughter’s.

Caregiver Discrimination

Title VII doesn’t identify “caregivers” as a protected characteristic. But the EEOC and some courts have applied the law to provide employees rights to raise children.

Most of these cases have involved women claiming they were denied employment opportunities for having or wanting to have children. In a 2009 decision, the U.S. Court of Appeals for the First Circuit summarized: “In the simplest terms, these cases stand for the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities.”

The EEOC has consistently taken this position, which it has described in assorted guidance documents.

Other Bases for Association Discrimination Claims

A few appellate courts have ruled that Title VII prohibits association discrimination regarding each of the law’s protected characteristics. Most recently, the U.S. Court of Appeals for the Second Circuit (which covers Connecticut, New York, and Vermont) ruled, “we now hold that the prohibition on association discrimination applies with equal force to all the classes protected by Title VII . . . .”

The Second Circuit made this pronouncement through a February 26, 2018 decision in which the court ruled that Title VII prohibits sexual orientation discrimination through its general inclusion of sex as a protected characteristic. You can learn more about that decision in an earlier post.

Retaliation by Association

In 2011 the U.S. Supreme Court ruled that an employee may sue his employer for retaliation under Title VII claiming that he had been fired because his fiancée had filed a sex discrimination charge against their employer.

Before this decision, many courts had concluded that Title VII’s retaliation protections only applied to the persons who personally engaged in protected activity. For example, the person who has filed a discrimination complaint. The Supreme Court, however, advised that “Title VII’s antiretaliation provision prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

On that standard the Court continued: “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired.”

Employer Responsibilities

Many of the legal details in this area remain murky. The Supreme Court has not weighed in recently on most of these questions. It is not certain how it would rule in these cases today. Regardless, most employers don’t want to be in the position of finding out directly. Accordingly, it is best to avoid any appearance of discrimination, whether based directly on an employee’s characteristics or those of their relatives or others with whom they associate.

Employers should also be aware of the Genetic Nondiscrimination Act (GINA), which likewise applies to employers with 15+ employees. Among other things, GINA prohibits discrimination in employment based on an individual’s family medical history. For more, read Don’t Forget GINA.

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