Feb 2, 2020
I defend employment litigation around the country.
The #MeToo movement gained momentum in early October 2017, when the hashtag went viral on social media following Alyssa Milano’s now-famous tweet, which led to responses from celebrities and ultimately resulted in an avalanche of allegations of sexual harassment and assault. The #MeToo Movement has, of course, impacted workplace dynamics, and companies have responded in various ways, such as by conducting investigations, modifying sexual harassment policies and providing more frequent and robust training of employees of all levels.
Given that sexual harassment claims can present serious reputational and financial risks to companies, questions are often raised as to the current state of the #MeToo movement—particularly with respect to its influence on the workplace. What sources can we look to in order to answer the question? There are a variety, but one notable source is year-over-year data on the rate of filings of sexual harassment charges with the U.S. Equal Employment Opportunity Commission, the size of recoveries in matters before the EEOC and determinations the EEOC has made.
So let’s consider the data the EEOC just released on these issues on January 24, 2019. A fair reading of that data suggests the #MeToo movement continues to press forward. Most notably, the data shows that the number of sexual harassment filings in fiscal year 2019 remains quite substantial but has dropped from the number filed in fiscal year 2018, and the amount of recovery for sexual harassment charges has increased from fiscal year 2018.
Let’s take a closer look at the data and then consider what it could mean in practical terms for companies.Today In: Leadership
Volume Of EEOC Sexual Harassment Charges
The EEOC recently released data that includes breakdowns for the 72,675 charges filed in fiscal year 2019 (which runs through September 30, 2019). Sexual harassment charges represented 10.3% of that overall number.
The number of sexual harassment charges filed in fiscal year 2019 was 7,514, whereas the number of such charges filed in fiscal year 2018 was 7,609. While not enormous, this drop is curious given that the #MeToo movement remained active in fiscal year 2019, with a number of high-profile cases. Notably, the number of claims in fiscal year 2019 is lower than those filed in fiscal years 2010 to 2012, but still higher from those in fiscal years 2014 to 2017.
Size Of Recoveries
While the number of sexual harassment charges dropped in fiscal year 2019, the size of the recoveries jumped up from $56.6 million in fiscal year 2018 to $68.2 million in fiscal year 2019. The size of the increase in recoveries becomes vivid when comparing fiscal year 2019 recoveries to those in fiscal year 2010 ($41.2 million) through fiscal year 2017 ($46.3 million).
How Complainants Are Faring Before The EEOC
Another interesting set of data points shows how complainants alleging sexual harassment fared before the EEOC in fiscal year 2019. As a preliminary matter, when reviewing the data, one should keep in mind that the EEOC does not issue determinations on all sexual harassment charges, and the data referenced below may reflect the fact that fewer sexual harassment were filed in fiscal year 2019.
Getting to the point, the EEOC issued fewer “no reasonable cause” determinations in fiscal year 2019 (4,297) than it did in fiscal year 2018 (4,501). Yet, the EEOC found that “reasonable cause” existed in fewer matters in fiscal year 2019 (356) than it did in fiscal year 2018 (430).
Notably, the data on reasonable cause findings during the life of the #MeToo movement shows there were fewer findings in favor of complainants during that time-frame than in fiscal year 2010 through fiscal year 2013 and an arguably similar number of findings in fiscal year 2014 through fiscal year 2016.
Charges Filed By Men
Additional data the EEOC just revealed shows that 16.8% of the EEOC charges filed in fiscal year 2019 were initiated by men, which is an increase in the 15.9% figure for filings by men in fiscal year 2018.
What Inferences Can We Draw?
The newly revealed EEOC data raises some important questions, including the following:
– Are plaintiff-side attorneys being more selective in choosing which cases to pursue?
– Have employee training programs—which many employers revisited when the #MeToo movement blossomed—become more effective?
– Is a larger swath of corporate America appreciating the risks that flow from sexual harassment claims and adjusting their conduct accordingly, while those who have not changed course have suffered more severe financial consequences?
– Are fewer claims being brought in the aggregate while more claims are being filed against higher-level managers or executives (which could engender greater recoveries)?
There are no clear answers to those questions. But it’s noteworthy that the volume of claims is still relatively high and the size of recoveries has jumped.
Also, can we draw any particular inferences from the fact that the EEOC has issued fewer reasonable cause findings while at the same time issuing fewer no reasonable cause findings? That’s a difficult question to answer as a general matter because each determination turns on the specific facts of the case. And a drop in reasonable cause findings does not fit neatly with the data showing that the size of recoveries has increased over the EEOC’s last fiscal year.
Last, the fact that more men have been filing sexual harassment charges suggests that the #MeToo movement has effectively raised awareness across the board.
All in all, the EEOC’s fiscal year 2019 data shows that despite a drop in charge filings over the EEOC’s last fiscal year, sexual harassment claims are still being filed at a meaningful rate and garnering significant recoveries. This may serve as at least one indicator that the #MeToo movement as it relates to workplace dynamics still has steam.
Law Office of Bryan A. Chapman
Bryan A. Chapman, Esquire
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