The U.S. Equal Employment Opportunity Commission (EEOC) recently released the statistical details for the 61,331 charges of workplace discrimination received by the agency during the 2021 fiscal year. This represents a 9.1% decrease from the 67,448 charges received in full year 2020. After the number of charges filed with the EEOC increased each year from 2014–2016, starting in 2017, the number of charges began declining. 2021 represents a fourth consecutive annual decline in the number of charges.

The number of pending charges increased slightly in 2021 to 42,811, a 2% increase from 41,951 in 2020, breaking a steady decreasing pending inventory since 2015. The decrease in charges and the increase in pending could possibly be due to changing work environments related to COVID‑19, including remote and hybrid remote/office environments. This does not include charges filed with state or local fair employment practices agencies, which may be significant in some jurisdictions.

While the total number of charges continues to decline, in 2021, the total monetary benefits recovered through voluntary resolution of claims was over $350 million. This was the 7th highest total recovery on record over the previous 25 years. Yet, even as the total number of claims decreases, the total cost of claims is steeply rising.

Here are the latest categories of discrimination:

Once again, retaliation leads the frequency of charges. 56% of all charges filed in 2021 included a retaliation claim. Retaliation claims are the most expensive claims for employers, and we do not expect that trend to change anytime soon. The EEOC reported a slight increase in frequency as an overall percentage of the total based on retaliation, disability, race, color, age or national origin. By contrast, sex, religion, EPA and GINA showed a small reduction in frequency.

With 6,508 charges (9.6% of U.S. total) in 2021, Texas led the states with more charges filed than in any other state; Florida came in second with 4,941 (7.3% of U.S. total). In third place is Pennsylvania with 3,960 charges (5.9% of U.S. total). California came in fourth with 3,865 charges (5.7% of U.S. total).

EEOC’s Notable 2021 Cases

Racial Discrimination – EEOC v. McCormick & Schmick – settlement of $1.3 million – The EEOC alleges the nationwide seafood restaurant refused to hire African Americans into positions that would interact with the public, known as “front of the house” positions, at its Baltimore restaurants. The case involved approximately 200 individuals.

Retaliation and Attorney’s Fees – Barbara S. v. U.S. Postal Service, EEOC Appeal No. 202002285, April 14, 2021 – EEOC Administrative Judge found Barbara S. failed to prove various claims regarding her working conditions, denial of overtime and job assignments. However, on appeal the EEOC Agency overturned the Administrative Judge’s decision and found Barbara S. was retaliated against when management refused to provide her with information during the processing of her complaint, referred to her in a derogatory manner and discussed her complaint with others that did not have a legitimate need to know. Barbara S. was awarded a confidential amount addressing her retaliation claim, and she was awarded $41,231.58 in attorney’s fees.

Sexual Harassment – EEOC v. Activision Blizzard, Inc., et al. – settlement of $18 million – In early 2018, the EEOC received an anonymous letter regarding sexual harassment at Activision Blizzard. The EEOC initiated a companywide investigation and, in September 2021, filed suit alleging Activision Blizzard, Blizzard Entertainment and King.com, Inc. and their subsidiaries (collectively referred to as “Activision Blizzard”) violated Title VII by subjecting employees to sexual harassment, pregnancy discrimination and retaliation related to sexual harassment and/or pregnancy discrimination. The EEOC’s Consent Decree covers individuals who were employees between 9/1/2016 and 3/20/2022 in California, Texas, New York, Minnesota, Arkansas and Wisconsin.

COVID‑19 and the Definition of Disability

As of the end of 2021, the EEOC updated its COVID‑19 technical assistance, adding a new section to clarify the circumstances where COVID‑19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act, and the rights of employees and job applicants who believe they suffered retaliation under the ADA due to having COVID‑19 or the perception of having COVID‑19.¹

EEOC’s new questions and answers focus broadly on COVID‑19 and the definition of Disability under Title I of the ADA and Section 501 of the Rehabilitation Act, both of which address employment discrimination. The updates also provide examples illustrating how an individual diagnosed with COVID‑19 or a post-COVID condition could be considered to have a disability under the laws the EEOC enforces.

Their press release outlines the clarification:²

“Key information includes:

• In some cases, an applicant’s or employee’s COVID‑19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID‑19 itself constituted an actual disability.
• An applicant or employee whose COVID‑19 results in mild symptoms that resolve in a few weeks – with no other consequences – will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.
• Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and when the accommodation is not an undue hardship for the employer. Employers can choose to do more than the ADA requires.
• An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.”

2022 EEOC Initiatives

The EEOC is focusing on several new initiatives that may impact the workplace.

1. Protecting Vulnerable Workers – “The EEOC will focus on job segregation, harassment, trafficking, pay, retaliation and other policies and practices against vulnerable workers, including immigrant and migrant workers, as well as persons perceived to be members of these groups and against members of undeserved communities.”³
2. Protecting LGBTQI+ Applicants and Employees From Discrimination Based on Sex – In June 2022, the EEOC implemented the opportunity to choose a nonbinary “X” gender marker during the intake process for filing a discrimination charge. “By adding a nonbinary gender marker option to the EEOC’s charge intake process, the EEOC is delivering on a public commitment that we made on Transgender Day of Visibility (March 31) and promoting greater inclusion for members of the LGBTQI+ community,” said EEOC Chair Charlotte A. Burrows. “During Pride Month, it is especially important to make clear that in advancing the EEOC’s mission to prevent and remedy employment discrimination, we must serve all workers, including those who do not identify as exclusively male or female. Our public-facing charge forms now make clear that we respect that diversity.”⁴
3. Civil Rights – “Clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships and the on‑demand economy.”⁵
4. Backlash Discrimination – “Addressing discriminatory practices against those who are Muslim or Sikh or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, arising from backlash against them from tragic events in the U.S. and abroad.”⁶
5. Ensuring Equal Pay Protections for All Workers – The EEOC will focus on compensation systems and practices that discriminate based on sex under the EPA and Title VII. Because pay discrimination also persists based on race, ethnicity, age and for individuals with disabilities, and other protected groups, the EEOC will also focus on compensation systems and practices that discriminate based on any protected basis and not just sex.⁷

Looking Ahead

With the recent court decision in Dobbs v. Jackson Women’s Health Organization, No. 19‑1392, 597 U.S. (2022), the decision to overturn Roe v. Wade, there is an open question whether employees may commence lawsuits against their employers regarding companies covering workers’ abortion costs, alleged discrimination based upon an employee’s decision to have an abortion and employee privacy.

Whether or not an EPLI policy will be impacted is an area we will be monitoring. Please reach out to us or your Gen Re representative with any questions.

Endnotes

1. What You Should Know About COVID‑19 and the ADA, the Rehabilitation Act, and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#N
2. EEOC Adds New Section Clarifying When COVID‑19 May Be a Disability, Updating Technical Assistance,” EEOC Press Release, December 14, 2021, https://www.eeoc.gov/newsroom/eeoc-adds-new-section-clarifying-when-covid-19-may-be-disability-updating-technical
3. U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan, Fiscal Years 2017–2021, Executive Summary, https://www.eeoc.gov/us-equal-employment-opportunity-commission-strategic-enforcement-plan-fiscal-years-2017-2021
4. “EEOC Adds X Gender Marker to Voluntary Questions During Charge Intake Process,” EEOC Press Release, June 27, 2022, https://www.eeoc.gov/newsroom/eeoc-adds-x-gender-marker-voluntary-questions-during-charge-intake-process
5. Id at note 1.
6. Id at note 1.
7. Id at note 1.