New Acting Chair and Release of 2016 Charge Statistics
On January 25, 2017, President Trump appointed Victoria Lipnic to serve as Acting Chair of the Equal Employment Opportunity Commission (“EEOC”). Last week, the EEOC released detailed breakdowns of the over 91,000 workplace discrimination charges filed in FY2016. The graph below highlights the rise in charges—some of them dramatically—since 1997.
Let’s review some of the trends:
LGBT charges are on the rise. The EEOC continues to enforce its position that sexual orientation and gender identity are protected classifications embedded within Title VII’s prohibition against gender discrimination. In 2016, the EEOC recovered nearly $4.4 million, twice as much as two years ago, in fighting workplace LGBT discrimination charges. This year’s summary is the first in which EEOC included detailed information about LGBT charges—a total of 1,768 charges were filed in 2016 compared to 808 just four years ago in 2013 when EEOC first began tracking such charges. Given EEOC’s position, employers would be well advised to update their EEO and Harassment policies and also should conduct workplace diversity training to familiarize employees with these protections and concepts.
Workplace retaliation claims arising under all EEO statutes continue to rise. An increase here means employees are feeling that employers are unfairly disciplining them because the employees engaged in the “protected act” of expressing concerns about EEO issues or participating in investigations regarding EEO issues. As we all know, lodging EEO complaints does not insulate an employee from discipline for policy violations and poor performance. But employees generally have a raised guard after filing complaints, and may feel that all of an employer’s actions are retaliation-based. To prevent such situations, employers should implement clear procedures for addressing workplace complaints, ensure the procedures are followed with regard to all employees, and take affirmative steps to avoid the possibility of adverse actions against individuals who complain about EEO (or other) issues or otherwise participate in investigations into such issues.
Workplace diversity training that thoroughly addresses these and related issues is critical to create a culture of inclusiveness and avoid potential harassment and discrimination based on national origin, race, color, or religion. With increasing diversity in the workplace, employers should review the EEOC’s 2016 Enforcement Guidance on National Origin Discrimination. Discrimination on the basis of national origin includes discrimination based on one’s ethnicity and culture, physical or linguistic traits, and extends to instances where the discrimination is based on the mere perception that one is a member of a particular national origin or associates with someone with a particular background. Workplace diversity trainings that address these issues in conjunction are critical proactive measures to prevent and eradicate harassment and discrimination based on one’s national origin, race, color, or religion.
It is fair to think that we should expect to see major changes this year—stay tuned as President Trump takes the opportunity to nominate a new Chair as well as new General Counsel to be approved by the Senate.