On the eve of the one-year anniversary of the Harvey Weinstein allegations being reported, the tinder that sparked the #MeToo movement into a full-fledged fire, the U.S. Equal Employment Opportunity Commission has a message for employers: This issue is one the agency takes very seriously.
In what lawyers described as an unusual news release, the EEOC announced preliminary sexual harassment data for its 2018 fiscal year, sharing that it had filed 66 harassment lawsuits, including 41 with allegations of sexual harassment, a more than 50 percent increase in suits challenging that specific issue over the year prior. New charges filed with the EEOC alleging sexual harassment jumped by more than 12 percent over 2017 to more than 7,500 — the first increase in at least eight years. And the EEOC recovered nearly $70 million through litigation and administrative enforcement of sexual harassment issues in 2018, up from $47.5 million the year before.
“Seeing a separate press release related to sexual harassment data — I’ve never seen them do this before,” said Christopher DeGroff, a labor and employment attorney with Seyfarth Shaw who co-chairs the firm’s “complex discrimination litigation” practice group. “They’ve always been very focused on sexual harassment issues — this isn’t a flash in the pan. But the agency has an opportunity in the current environment to emphasize this issue.”
The acting chair of the agency, Victoria Lipnic, said in an interview that the EEOC released the information this way in part because it had been receiving many requests for data in the lead-up to the Weinstein reporting anniversary. “It’s been a busy year at the EEOC on this issue, and we knew we would be having a lot of people asking us this week for this information,” she said.
But it also helps to reinforce the agency’s focus on this issue.
“We were acting on it with every tool available to us — from outreach to cases filed,” said Lipnic, who has made the issue a priority during her tenure. “One of the overarching concerns that I’ve had over this past year is that with so much focus on these big celebrity-driven and media-driven pieces," it might get lost that “the people who come to the EEOC are in mom-and-pop shops and small companies and everyday companies. This stuff happens everywhere. If you don’t address it in your workplace, you could find yourself on the receiving end of a federal enforcement."
Lipnic said she believes the higher reporting figures are a result of the #MeToo movement.
“Quite honestly, as we’ve been putting this all together over the last week, I wasn’t sure what the numbers were going to show," she said. "I suspected there was an increase, but I think it absolutely reflects a greater willingness to report it and speak up about it.”
In 2018, she said, the “overall charges on all bases of discrimination are down, but charges of sexual harassment are up.”
Employees with allegations of sexual harassment do not always file a charge with the EEOC; they can file with a state agency or make internal complaints with their employer, said Barry Hartstein, co-chair of the EEO and diversity practice at Littler Mendelson, a labor and employment law firm that represents employers. The lawsuits filed by the EEOC therefore do not reflect the total number of cases about sexual harassment; many workers ask for a dismissal and “notice of right to sue" in court, he said.
Hartstein commended the EEOC’s focus on the issue, saying that it had included harassment among its top six priorities at least since 2012 and has been proactive on the issue. In 2015, it formed a task force to focus on the issue, which resulted in a 2016 report that addressed items such as the need for more general civility training, the role of bystanders in sexual harassment intervention, and the job of frontline managers in responding to the issue.
“They came out with an absolutely comprehensive report," Hartstein said. "I thought what made the task force really illuminating is they were in front of this issue, and they basically told employers what we should be doing to reduce harassment in the workforce.”
Lipnic said the task force was formed because “we were so struck by the persistence and pervasiveness of this issue in so many workplaces" despite years of corporate training programs and awareness of the issue. “We felt like it was of such importance that we had to address it in some manner beyond the normal operations of the commission.”
A year ago, it also launched a training curriculum focused on sexual harassment, and this year, the agency timed some of its sexual harassment filings against companies together for dramatic effect, lawyers said.
DeGroff, the employment attorney, said the numbers released Thursday demonstrate the EEOC is sending a message. “The takeaway from me is the EEOC — while it’s never turned a blind eye to sexual harassment cases — has certainly ramped up its enforcement efforts through litigation in the last couple of years,” he said. “When the EEOC files a case, it’s meant to send a message not just to the employer it sues, but also to employers generally.”