The Equal Employment Opportunity Commission (EEOC or agency) recently released its Fiscal Year 2018 Enforcement and Litigation Data. The agency received 76,418 charges of discrimination in FY 2018, which is down from the 84,254 charges of discrimination received in FY 2017. According to the agency, the “#MeToo” movement had a “significant impact” on the number of sexual harassment and retaliation charges filed. The number of charges alleging sexual harassment increased by 13.6% from 6,696 in FY 2017 to 7,609 in FY 2018. Retaliation charges comprise the majority (i.e., 51.6%) of the total EEOC charges filed. The second largest group, sex discrimination charges, comprises 32.3% of the total charges filed followed by disability and race discrimination charges. Charges based on genetic information comprised the lowest percentage of charges filed at .3%.
The agency filed 199 lawsuits in FY 2018 and secured $505 million for alleged victims of workplace discrimination. Of the $505 million, $56.6 million was secured for alleged victims of sexual harassment. The agency boasts “a successful outcome” in a substantial 95.7% of all district court resolutions. At the close of FY 2018, the agency had 302 lawsuits pending. These statistics serve as a reminder to employers to consult experienced legal counsel in responding to charges of discrimination in an effort to avoid an unfavorable finding by the EEOC and the potential for litigation by the EEOC on behalf of the claimant(s).
The agency’s data shows that 8.7% of the total charges filed, i.e., 6,617 charges, were filed in Florida. Only Texas saw a higher percentage of the total EEOC charges filed at 9.8%. Florida followed the national trend with retaliation charges comprising the largest percentage (i.e., 54.7%) of the total Florida EEOC charges filed. This is an increase from the FY 2017 in which retaliation charges comprised 50.8% of Florida EEOC charges. Also, consistent with the national trend, the number of Florida EEOC charges based on sex discrimination increased from 29.8% in 2017 to 31.9% in FY 2018 and comprised the second largest category of Florida EEOC charges filed.
Keep in mind an employee can allege retaliation not only because the employee filed or threatened to file a claim with a local, state or federal agency, but also because the employee opposed a perceived illegal employment action by the employer.
Eleventh Circuit Explains “Similarly Situated”
To state a case of employment discrimination under Title VII of the Civil Rights Act, a plaintiff must first show that she belongs to a protected group; that she was subjected to an adverse employment action; that she was qualified to perform her job; and that the employer treated “similarly situated” employees outside her protected group more favorably. To clear up the confusion created in prior decisions, the Eleventh Circuit Court of Appeals (which covers Florida) recently explained what it means to be “similarly situated.” Ordinarily (but not necessarily always), a “similarly situated” employee “will have engaged in the same basic conduct (or misconduct) as the plaintiff … will have been subject to the same employment policy, guideline, or rule as the plaintiff; will ordinarily … have been under the jurisdiction of the same supervisor as the plaintiff … and will share the plaintiff’s employment or disciplinary history …”
Recognizing that employers are well within their rights to treat employees differently who are differently situated in “material respects,” such as, employees who engage in different conduct, are subject to different policies or who have different work histories, the Court reasoned, among other things, that the “all material respects standard … leaves employers the necessary breathing space to make appropriate business decisions.” However, it is a less rigorous standard for plaintiffs to meet than the previous – and now rejected – “nearly identical” standard that was required by the Court in various prior decisions.