Equal Employment Retaliation Charges By Staff Present Risk For All Family Employers

On March 28, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released data on workplace discrimination charges received in FY 2021.

The EEOC received 61,331 charges and resolved 62,187 charges during FY 2021, which ended on September 30, 2021. The EEOC secured $350.7 million through voluntary resolutions for victims of workplace discrimination.

The EEOC resolved 138 merits lawsuits and filed 116 lawsuits, recovering more than $34 million for charging parties and other aggrieved individuals.

The most common type of charge filed with the EEOC is retaliation. Fifty-six percent of all charges filed with the EEOC in FY 2021 involved retaliation, totaling 34,332 retaliation charges.

Disability discrimination was the second most common charge filed, with 22,843 charges comprising 37.2 percent of all charges filed. Race discrimination totaled 20,908 charges, 34.1 percent of charges filed, which was a 5.2 percent decrease from FY 2020.

The EEOC received 18,762 charges of sex discrimination, down from 21,398 in FY 2020, and 12,965 charges of age discrimination, down from 14,183 in FY 2020.

National origin discrimination comprised 10.1 percent of charges filed, at 6,213 total charges, and color discrimination comprised 5.7 percent, at 3,516 total charges.

The EEOC received 2,111 charges of religious discrimination, 885 charges of Equal Pay Act violations, and 242 charges of Genetic Information Nondisclosure Act violations.

Finally, the EEOC received 1,968 charges of LGBTQ+-based discrimination, which constitutes 10.5 percent of all sex discrimination charges and 3.2 percent of all charges. This is an increase of six percent from FY 2020.

Percentages are greater than 100 because some charges allege multiple types of discrimination. "Enforcement and Litigation Statistics" www.eeoc.gov.

Commentary and Checklist

If you are a family employer with fewer than 15 on staff, you are not subject to federal EEO laws; however, you are likely subject to your state’s EEO laws, which often apply to smaller employers.

No matter the number of staff you employ, retaliation is the top EEO area of exposure for family employers.

Retaliation can occur when family employers take a negative employment action against a staff member for reporting an EEO violation, for supporting another’s report, or for participating in an investigative process as to a report of a violation. This could include filing an EEO charge or lawsuit, discussing discrimination with a manager or supervisor, participating in an investigation, refusing to obey orders that would constitute discrimination, resisting sexual advances, asking for a disability accommodation, asking about salary information to uncover potential discrimination, or otherwise participating in a complaint process. EEOC “Retaliation” www.eeoc.gov.

For this reason, it is important for family employers to take equal employment claims made by staff seriously, including utilizing outside counsel as soon as possible.

Here are examples of negative employment actions from the EEOC that could be considered retaliatory:

  • Work-related threats, warnings, or reprimands
  • Negative or lowered evaluations
  • Transfers to less prestigious or desirable work or work locations
  • Making false reports to government authorities or in the media
  • Filing a civil action
  • Threatening reassignment, scrutinizing work, or attendance more closely than that of other employees without justification
  • Removing supervisory responsibilities
  • Engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not yet "severe or pervasive" as required for a hostile work environment
  • Requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity
  • Terminating a union grievance process or other action to block access to otherwise available remedial mechanisms
  • Taking (or threatening to take) a materially adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).
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