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2020 EEOC Statistics – More Money and Fewer Charges

The U.S. Equal Employment Opportunity Commission (EEOC) released its comprehensive report on the workplace discrimination claims it received in Fiscal Year 2020. The Enforcement and Litigation Statistics provide detailed breakdowns of charges of employment discrimination and resolutions under a variety of statutes. Here are the highlights:

Total Charges Filed

The EEOC’s FY 2020 ended on September 30, 2020, and the total number of workplace discrimination charges filed with the EEOC dropped to 67,448. This was to be expected with the number of workplaces that shut down in 2020. Also, the increase in remote work in 2020 reduced the prospect of inappropriate interaction among employees. It was somewhat surprising that the total number of charges only dropped by 7% compared to FY 2019. Nearly every measure of labor-statistics showed a decrease of at least 10%-15% in workforce participation.  

Total Dollars Recovered

The EEOC recovered $106 million in FY 2020 through litigation. This exceeded the total litigation recovery in 2018 and 2019 combined. The previous 10-year average was approximately $53M/year. The $106M was the largest amount recovered by the EEOC since 2004. Again, this was somewhat surprising based upon the limitations on the legal system and the conservative administration in place. Outside of litigation, the FY 2020 monetary benefit recovered by the EEOC was $333.2 million. The total recovery of $439 million was the most in the past 20+ years.  

Claims of Interest

For the 18th year in a row, Retaliation claims continued to increase. Retaliation remains the most common type of charge filed with the EEOC. In FY 2020, Retaliation was part of 55.8% of all charges filed, an increase from 53.8%. If nothing else, this stresses the importance for all employers to educate their supervisors, managers, and employees on the strict prohibition against retaliatory conduct.

Disability Discrimination was the second most common claim, with 36.1% of all charges filed, an increase from 33.4%. This is likely due to the expansion of the definitions of a disability and the requirements on employers to engage in an interactive accommodation process.   

Genetic Information Nondiscrimination Act (GINA) claims increased by 110%, although they still make up around 1% of the total charges. This law is still in its relative infancy but may see another increase surrounding vaccination issues.

All other claims remained largely consistent. Race Discrimination modestly dropped to 32.7% of the charges from 33% in 2019. Although Color Discrimination increased to 5.3% of total charges from 4.7%. Sex Discrimination accounted for 31.7% of claims. Age Discrimination was included in 21% of claims. National Origin claims were approximately 9.5%. Religious Discrimination accounted for 3.6% of charges.

Employer Takeaway

In evaluating claims, the percentages will always add up to more than 100% because some/most charges allege multiple types of discrimination. 

It is important for employers to evaluate the types of charges as they create policies and educate their workforces. Too often, employers will focus only on sexual harassment training and policies and/or may include some discrimination training, but will overlook age discrimination, when those claims account for over 20% of the risk. The $439M recovered by the EEOC does not include any of the other litigation, arbitrations, informal resolutions, and severance packages that employers face in claims of discrimination and retaliation.

Obviously, the most significant risk to employers is a Retaliation claim. It accounts for the greatest number of claims, and results in the highest amount of damages and penalties. 

For additional information or to evaluate trainings, policies, and other risk mitigation measures, please contact Labor + Employment Law Member Jeffrey C. Miller, jcmiller@bmdllc.com or any member of the BMD Labor + Employment Team.

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.

Property Owner Protection from Tax Valuation Challenges

New legislation provides significant new protections for commercial property owners against challenges to valuation primarily by local school boards and prohibiting side agreements to avoid tax valuation changes. The Ohio Legislature has approved House Bill 126 which will go into effect July 2022 but will effectively apply to the 2023 tax valuation year.