Looking Back and Looking Forward: EEOC Enforcement Efforts

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As the end of the year approaches and employers begin to look toward 2024, they need to be mindful that charges filed with the Equal Employment Opportunity Commission (EEOC), as well as lawsuits filed by the EEOC, have seen a significant increase.  This article provides an overview of the agency’s enforcement efforts during the fiscal years 2022 and 2023 and offers some insights into what employers can expect going forward.

FY2022 EEOC Charge Statistics at a Glance

In FY2022, the EEOC saw a significant increase in the number of charges filed compared to FY2021. The EEOC’s data shows that 73,485 charges were filed last year compared to 61,331 charges in FY2021, representing almost a 16% increase in the number of charges. Notably, this is a significant change from the overall downward trend in the number of charges seen between FY2017 and FY2021. In fact, FY2021 saw the lowest number of charges received from workers in more than two decades.

Of charges filed in 2022, retaliation remained the most common claim, appearing in 37,898 charges, or 51.6% of the total charges filed. This is not entirely surprising, as retaliation claims are often brought in conjunction with other claims. Disability discrimination charges constituted the next most frequently filed type of charge at 25,004 charges, or 34% of total charges. There was also a significant increase in the number of religious discrimination charges brought, with religious claims constituting 18.8% of all charges filed in FY2022, compared to 3.4% of all charges filed in FY2021.  

The breakdown of the number of charges filed in FY2022 is as follows:

• Retaliation: 37,898 (51.6% of charges filed)
• Disability: 25,004 (34% of charges filed)
• Race: 20,992 (28.6% of charges filed)
• Sex: 19,805 (27% percent of charges filed)
• Religion: 13,814 (18.8% of charges filed)
• Age: 11,500 (15.6% of charges filed)
• National Origin: 5,500 (7.5% of charges filed)
• Color: 4,088 (5.6% percent of charges filed)
• Equal Pay Act: 955 (1.3% of charges filed)
• Genetic Information: 444 (0.6% of charges filed)

When looking at specific states, Texas saw the most charges filed, followed by Florida and Illinois. South Carolina and North Carolina also saw a slight increase in the number of charges brought in FY2022, and Alabama remained about the same. Specifically:

• Texas: 6,990 in FY2022 compared to 6,508 in FY2021
• Florida: 5,192 in FY2022 compared to 4,941 in FY2021
• Illinois: 4,909 in FY2022 compared to 3,634 in FY2021
• North Carolina: 3,506 in FY2022 compared to 2,958 in FY2021
• Alabama: 1,677 in FY2022 compared to 1,659 in FY 2021
• South Carolina: 1,158 in FY2022 compared to 1,007 in FY2021

Litigation and Settlement Trends in 2022

With respect to litigation, in 2022 the EEOC filed 91 employment discrimination lawsuits, including 53 suits seeking relief for individuals, 25 non-systemic suits with multiple plaintiffs, and 13 systemic suits, and resolved 96 employment discrimination suits. The EEOC also secured approximately $343 million for 32,298 plaintiffs in the private sector and state and local government workplaces through mediation, conciliation, and settlements during the administrative process, and over $39.7 million for 1,461 individuals as a direct result of litigation resolutions.

Litigation and Settlement Trends in 2023

With respect to litigation in FY2023, preliminary data shows a more than 50 percent increase over lawsuits filed by the EEOC in FY2022. In FY2023, the EEOC filed 143 employment discrimination lawsuits, including 86 suits seeking relief for individuals, 32 non-systemic suits with multiple plaintiffs, and 25 systemic suits.

These 2023 litigation trends are generally consistent with those of prior years in that the EEOC mainly alleged claims under the Americans with Disabilities Act (“ADA”) and Title VII.  However, the ADA was a particular focus for the EEOC, more so than in previous years, as it nearly doubled the number of ADA lawsuits it filed in FY2023 (48 in FY2023 versus 27 in FY2022).  Many of these disability-related lawsuits specifically concerned employee and applicant hearing impairments, which the EEOC previewed that it would focus on by publishing guidance regarding hearing disabilities in the workplace in January 2023. The EEOC also continued its focus on alleged failure to accommodate mental impairments, which included lawsuits related to employees with post-traumatic stress disorder, attention-deficit/hyperactivity disorder, autism-spectrum disorder, depression, and anxiety. 

The EEOC also continues to focus its attention on alleged systemic discrimination and workplace harassment, including by filing 43 hostile work environment lawsuits in FY2023. The EEOC scored some large settlements in these cases.  For example, the EEOC recently announced that a nationwide restaurant chain agreed to pay $400,000 to settle the EEOC's sexual harassment lawsuit, in which the EEOC alleged that the restaurant permitted three employees to be harassed by their manager and a co-worker. And, the EEOC announced at the end of last month that a manufacturer of lumber and building materials in West Virginia will pay $215,000 to settle a race and religious harassment lawsuit brought by the EEOC. The EEOC also released proposed guidance on workplace harassment at the beginning of this month, with the comment period closing on November 1, 2023, thus reinforcing the EEOC’s focus on workplace harassment.

Insights for Employers

Considering the large increase in the number of charges in FY2022 as well as the litigation and settlement trends in 2023, the volume of workplace discrimination charges and EEOC recovery efforts will likely increase or at the least stay the same. As such, employers should double down on efforts to minimize their exposure to workplace discrimination, harassment, and retaliation claims. Additionally, having robust policies in place and documented evidence of company-wide employee and management to provide to the EEOC if a claim is filed provides significant defenses for employers both at the charge stage and in the event the EEOC files a lawsuit.            

Maynard Nexsen’s employment law team is always here to help with daily advice and counseling, as well as litigation defense, in the event your company receives a charge.