My EEOC Charge is 1 in 90,000 - EEOC Fiscal Year 2018 Enforcement and Litigation Data

On April 10, 2019, the U.S. Equal Employment Opportunity Commission (EEOC) released detailed breakdowns of its work in fiscal year 2018 which ended on September 30, 2018. You can find details on its website but some remarkable statistics are as follows:

  • Received 76,418 charges of workplace discrimination

  • Resolved 90,558 charges of discrimination (including those filed in prior years)

  • Secured $505 million for victims in private sector, state and local government, and federal workplaces

  • Handled over 519,000 calls to its toll-free number, 34,600 emails and more than 200,000 inquiries in field offices

  • Filed 199 merits lawsuits alleging discrimination, including 117 individual suits and 45 suits involving multiple victims or discrimin­atory policies and 37 systemic discrimination cases

  • Achieved a successful outcome in 95.7 percent of all district court resolutions

Often, people inquire whether the #MeToo movement spurred more legal disputes. EEOC data demonstrates this was indeed the case. The agency also received 7,609 sexual harassment charges – a 13.6 percent increase from FY 2017 – and obtained $56.6 million in monetary benefits for victims of sexual harassment.

However, leading the pack as the most frequently alleged basis of discrimination with 51.6% of all charges filed, was “retaliation”, followed by “sex”, then “disability” then “race”, then “age”.

“The Letter of the Law” – SCOTUS Uses Grammar to Grant More Protection from Age Discrimination and Retaliation

Mount Lemmon Fire District v. Guido (No. 17-587), the November 2018 Supreme Court of the United States decision, broadens protection from age discrimination to more employees of government employers.

The Age Discrimination in Employment Act (ADEA) already protects people over the age of forty (40) who work for private employers with more than twenty (20) employees, but it was not clear whether employees of a government employer with fewer than twenty (20) employees had the same protection. Violations of the ADEA can result in liability for back pay, front pay, liquidated damages and attorneys fees. There are many government employers, or "political subdivisions", with fewer than 20 employees, so it was important to determine just what they could be liable for.

In this case, it was the Mount Lemmon Fire District, a political subdivision of Arizona. The fire District was having a bad financial year, so they fired their two oldest (and most expensive) employees, fire captains John Guido and Dennis Rankin. John and Dennis sued the Fire District, saying they were protected by the ADEA. The Fire Department tried to escape liability by saying they were not technically an "employer" under the ADEA because they had fewer than 20 employees, so were not subject to the ADEA.

The district court agreed that the Fire District was not an "employer", but a three-judge panel of the Ninth Circuit reversed, siding with John and Dennis. The case then went to the Supreme Court where, in a unanimous (8-0) decision authored by Justice Ruth Bader Ginsburg, the Court held that the ADEA applies to all state political subdivisions, regardless of the number of employees there employed.

Let's look at how they got there. Basically this is where grammar comes in handy. The ADEA is written as follows:

"The term 'employer' means a person engaged in an industry affecting commerce who has twenty or more employees...The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State..." 29 U. S. C. §630(b).

The Court looked at the plain language of the statute and found that the fact that the definition is broken into two sentences, and includes the words "also means" establishes two different categories:

1. persons engaged in an industry affecting commerce with 20 or more employees; and

2. states or political subdivisions.

By applying this logic, the Court was also able to determine that the second category has no numerical limitation.

As an example, if a definition said: "the term 'airplane' means a vehicle propelled by a minimum of two jet engines for air travel. The term also means a vehicle that uses propeller power to achieve air travel," we would understand that the two sentences, and the words "also means" indicate that the two things listed as examples of airplanes are entirely separate, and should be regarded as such. We would further understand that just because category one (jet planes) requires a minimum of two jet engines, category two (propeller planes) states no minimum number of propellers, and could very well have only one and still be considered an airplane under the definition.

By using grammar, the Supreme Court determined that the Fire District, and all other States and political subdivisions, are subject the provisions of the ADEA, regardless of their number of full time employees.

The lessons to be learned here are not only are all government employers barred from discriminating against employees based on their age, but also the way statutes are written (or "the letter of the law") can have real impact on the outcome of a case.

So You Think You’ve Been Discriminated Against Based on Your Race? Prove It.

We’ve all had that feeling we’ve rubbed someone the wrong way. This is a feeling that starts in our gut; it is our subjective understanding of the circumstances. Next, we try to objectively examine the way we are being treated relative to the treatment of others around us. We ask, is it me or are people of a different race being treated differently? This analysis is the same one demanded by Title VII of the Civil Rights Act of 1964 (Title VII) in racial discrimination cases. 

Racial discrimination is often manifested subtly and is difficult to detect.  It can also be extremely difficult to prove. However, one thing is certain, black Americans have faced discrimination in the workplace for the past 25 years. In fact, juries around the country are routinely awarding large sums of damages to African Americans who have demonstrated that they suffered racial discrimination in their respective workplaces. 

To prove race discrimination in the workplace, an employee must be able to demonstrate that they were subjected to an adverse job action based on their race. Generally, an employee has to prove race discrimination using direct evidence. An example of direct evidence would include, among other requirements, a memorandum, email or audio recording expressly stating something to the effect of: “Demote Jane because she is black; we only promote employees who are not black”. However only in rare cases does an employee actually have direct evidence of discrimination. Therefore, courts have accepted circumstantial (also known as indirect) evidence of discrimination. Where there is a sufficient amount of indirect evidence, the court will accept the entire compilation of evidence as proof of discrimination. An example of circumstantial evidence of racial discrimination in the workplace could include, among other requirements, a scenario where all the demoted employees were black, and all the promoted employees were white; without reason.

In order to prevail in a race discrimination lawsuit, the employee must demonstrate that:

  • They are in a protected class;
  • Qualified for a job or performing it adequately;
  • Were denied a job benefit or subjected to a negative job action.
  • The person who got the benefit or who was not subject to the negative job action, was of a different race or the company continued to search for qualified applicants. 

Proving a race discrimination case can be challenging. Additionally, there are strict timelines for reporting and filing racial discrimination claims. 

If you feel you have been discriminated against retaining the professional services of an employment law attorney will prove beneficial to assist you.