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EMPLOYMENT LAW UPDATE

EEOC charges down but lawsuits rising

By Mike O’Brien bio

EEOC data for FY2020 show dip in charges filed

The Equal Employment Opportunity Commission (EEOC) released its Fiscal Year 2020 Enforcement and Litigation Data report on Feb. 26, 2021. The EEOC reports that 67,448 charges of discrimination were filed in the fiscal year ending Sept. 30, 2020, compared to 72,675 charges filed in the previous fiscal year. The agency made headway in addressing a backlog of charges, resolving 70,804 charges during FY2020, and securing $439.2 million for victims of discrimination.

Continuing the trend of recent years, retaliation was the most commonly-asserted claim, made in 55.8% of all charges. Disability, race, and sex discrimination claims each were asserted in roughly a third of charges filed, at 36.1%, 32.7%, and 31.7%, respectively. Age, national origin, color, and religion follow with 21%, 9.5%, 5.3%, and 3.6%. (Note that the percentages add up to more than 100% because workers often allege multiple types of discrimination in one charge.) Interestingly, allegations of genetic information discrimination under the Genetic Information Nondiscrimination Act more than doubled, up to 440 from just 209 charges in FY2019.

The EEOC press release is here: EEOC Releases Fiscal Year 2020 Enforcement and Litigation Data | U.S. Equal Employment Opportunity Commission.

Employment lawsuits rise after pandemic lag

But while EEOC charges decreased last fiscal year, legal analytics firm Lex Machina reports that employment lawsuits filed in federal courts ticked up in the final months of 2020, after a decline earlier in the year. Nationwide, more than 2,200 employment lawsuits were filed in November and again in December. This is a “significant increase” compared to the same months in the two previous years. Of 19,957 total employment lawsuits filed in federal courts in 2020, only 3% involved claims related to COVID-19. Of those COVID-19 cases, the vast majority (73%) involved retaliation, 45% alleged discrimination, and 41% pled violations of the FMLA.

According to Lex Machina, there were “common fact patterns of the cases filed. For example, when an employee contracted COVID-19 and was fired or prevented from returning to work. These cases often involved retaliation claims, as well as American Disability Act (ADA) and Family Medical Leave Act (FMLA) claims. A second common fact pattern involved employers who did not provide sufficient levels of protective equipment or did not maintain sufficiently safe practices, and the employees who brought safety complaints to their employers ended up filing retaliation claims in court. These prevalent claims are closely interrelated, as discrimination often goes hand-in-hand with retaliation, and both are often intertwined with requests for accommodation (under the ADA or FMLA).”

The report is a timely reminder for employers dealing with COVID-related issues not to overlook the ways in which the ADA and FMLA may apply.

The Lex Machina report can be found here: Recent Impact of the Pandemic on Employment Litigation (Nov-Dec 2020) – Lex Machina.

President Biden names new general counsel for the NLRB

After terminating NLRB General Counsel Peter Robb on his first day in office, President Biden has nominated Jennifer Abruzzo to fill the influential position at the board, calling her “a tested and experienced leader.” Abruzzo is a veteran of the agency, having spent more than 20 years there in various roles including Deputy General Counsel and Acting General Counsel. The White House released a statement saying, “Abruzzo will bring her more than two decades of experience and knowledge at the NLRB to help rebuild America’s middle class. Abruzzo will be an important member in supporting the NLRB’s work to build a stronger, more resilient, and more inclusive economy that delivers every American a fair return for their work and an equal chance to get ahead.”

Abruzzo is widely viewed as a pro-labor choice who will advance Biden’s agenda, and may face a tough confirmation battle, with Republicans calling Robb’s abrupt termination unprecedented. In a possible preview of Abruzzo’s approach, Acting General Counsel Peter Sung Ohr has already rescinded 10 Guidance Memorandums issued during the Trump administration. Commentators predict the Biden NLRB will work more aggressively to protect workers in non-union settings (as well as being generally more pro-union). Employers should be alert to likely policy changes. Stay tuned to these updates.


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