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EEOC Says Sexual Harassment Litigation and Charges On The Rise In FY2018

Published by and on November 16, 2018

EEOC releases preliminary sexual harassment data for fiscal year 2018. Data shows striking increase in suits and charges alleging sexual harassment.

On October 4, 2018, the Equal Employment Opportunity Commission (“EEOC”) announced preliminary findings regarding Fiscal Year 2018 (“FY2018”) sexual harassment data. Based on the preliminary data findings, sexual harassment litigation has risen more than 50 percent since last year, and charges filed with the EEOC alleging sexual harassment have risen 12 percent since last year. Overall EEOC reasonable cause findings related to charges alleging harassment increased from 970 to nearly 1,200 in FY2018. In addition to the dramatically increased litigation and charges filed in FY2018, the EEOC reported that the hits on the agency’s website had more than doubled since last year.

In January 2015, the Select Task Force on the Study of Harassment in the Workplace (“Task Force”) was created and tasked with examining issues associated with harassment in the workplace. In June 2018, the Task Force released a report and executive summary of its findings, which noted that employees who experienced sex-based harassment “fail to report the harassing behavior or to file a complaint because they fear disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.” Between fiscal years 2010 to 2017, the number of charges sex-based harassment remained relatively steady, while the number of charges alleging sexual harassment had been steadily decreasing. In June 2017, the Task Force released a report and executive summary of its findings, which noted that employees who experienced sex-based harassment “fail to report the harassing behavior or to file a complaint because they fear disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.” On October 5, 2017 (early in FY2018), news reporting regarding allegations against Harvey Weinstein’s misconduct were published, and the #MeToo movement was ignited.

On June 11, 2018, a reconvening of the Task Forces was called to specifically address harassment in the workplace in light of the #MeToo movement. During her opening statement of the June 11, 2018, meeting, EEOC Acting Chair Victoria A. Lipnic was cautious to disclose whether the EEOC had seen an increase in charges alleging sexual harassment. She noted, however, that at that time, the EEOC had not seen a big increase of charges filed.

The EEOC last issued enforcement guidance on the topic of unlawful harassment in 1999. The EEOC recently submitted proposed guidance to the White House in 2017, however, official guidance has not yet been issued.

Welter Insight

Although the preliminary data has yet to be finalized, the numbers reported by the EEOC show a striking increase in EEOC litigation and charges filed in the wake of the #MeeToo movement. Employers may not be surprised by the EEOC’s data, but they should prepare for the increased likelihood of sex-based discrimination and sexual harassment charges moving into fiscal year 2019.

Employers can best reduce the increased risk of formal charges or litigation by investing time and resources in workplace harassment prevention policies and practices. This includes reviewing (and revising) internal policies and processes for handling workplace harassment issues, including reporting, responding to, and investigating complaints. Employers should also review and update employee handbook policies regarding anti harassment and complaint procedures. Finally, employers should review state and local laws regarding expanded protection for employees, expanded coverage over employers, and possible anti-harassment training for employees.

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