How quickly things change!
Late last week, the Equal Employment Opportunity Commission released preliminary numbers on sexual harassment for Fiscal Year 2018, which ended September 30. Here is what the agency says:
*There was a 12 percent increase in charges alleging sexual harassment in FY 2018 versus FY 2017. This doesn’t sound outlandish to me, but I’m surprised because only about a month ago Commissioner Chai Feldblum was quoted as saying that the EEOC had had about a 3 percent increase in sexual harassment charges since #MeToo. Before that, the EEOC was saying that it hadn’t seen any increase.
*The agency recovered $70 million “through litigation and administrative enforcement” in FY 2018,compared with only $47.5 million in FY 2017. This is a dramatic increase, but it does not surprise me. In light of #MeToo, I am sure that many employers were anxious to resolve sexual harassment charges quickly and may have been willing to pay more to get ’em done.
*The agency filed 41 lawsuits alleging sexual harassment in FY 2018. The EEOC claims this is a 50 percent increase over the prior fiscal year, but I can’t tell whether this is a 50 percent increase in sexual harassment lawsuits. The EEOC’s wording is imprecise:
The EEOC filed 66 lawsuits challenging workplace harassment, 41 of which alleged sexual harassment. This is more than a 50 percent increase in suits challenging sexual harassment over FY 2017.
What does “This” refer to? And what type of lawsuit in FY 2017 is the comparator?
That said, employment lawyers know that the EEOC filed a flurry of sexual harassment lawsuits shortly before FY 2018 ended. In fact, the word on the street is that the agency may have had a “quota.” Whether these lawsuits have more merit than sexual harassment lawsuits that the EEOC has filed in the past remains to be seen.
It’s important to note that the EEOC normally releases its official charge and litigation statistics early in the calendar year following the end of its fiscal year. Which means the real numbers for FY 2018 probably won’t be available until January or February 2019.
Although the numbers released last week are preliminary and perhaps subject to refinement, it does appear that the long-dreaded #MeToo “uptick” in charges may be occurring and that the EEOC is more willing to sue than it was in the past. So, employers, beware.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.