Recent data published by the EEOC shows a continuing downward trend in the number of employment-related charges. For example, EEOC data shows a decline of more than 27,000 charges filed annually in 2021 as compared to the number of charges filed in 2014. There are a number of factors contributing to this decline, including the impact of COVID-19 and the resulting labor shortages and—until recently—the relative ease of finding new employment. As the country continues to recover from the pandemic and face uncertain economic conditions, however, digging a little deeper into the data can reveal a few trends that may help guide educational employers in addressing areas of employment challenges that are certain to continue.

1. Texas tops the charts for EEOC charges

Even though charges overall are dropping, Texas remains the leader in terms of numbers of charges filed by state. For example, in 2021, over 6,500 charges were filed in Texas, which was more than 1,500 more than the next highest state, Florida. So, while Texas is still seeing overall declines, it continues to lead the way in terms of charges of discrimination and retaliation.

2. Retaliation continues to make up the bulk of charges filed

Retaliation continues to make up the majority of claims pursued in EEOC charges of discrimination. In 2021, over 34,000 charges of retaliation were filed, representing 56% of all charges filed. That is an increase in the percentage of retaliation charges filed from 2014, where retaliation made up only about 43% of all charges filed. There are several reasons why retaliation claims have become so popular. Not only does the EEOC have jurisdiction over a number of federal and state laws that prohibit retaliation, including Title VII, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act, and corresponding state anti-discrimination statutes, retaliation claims are often easier to prove. An employee will be successful in a retaliation case when they can show that the challenged action (or retaliatory conduct) is “materially adverse,” meaning it would have dissuaded someone from making or supporting a charge of discrimination. This is a lesser burden than in the discrimination context, where adverse employment actions are limited to ultimate employment decisions that substantially affect the terms and conditions of employment, such as hiring, firing, failure to promote, reduction in pay, and demotion. Meanwhile, retaliatory conduct can include a number of other adverse employment actions, including threats, unjustified negative evaluations or references, and increased monitoring or surveillance. Additionally, retaliation plaintiffs do not have to prove that any underlying discrimination or illegal conduct actually occurred.  Instead, they are only required to show that they engaged in “protected activity” by either (1) opposing an employment practice that they, in good faith, believe violates an anti-discrimination statute; or (2) filing a charge of discrimination, testifying, assisting, or participating in any manner in any investigation, proceeding, or hearing under an anti-discrimination statute.

3. Charges of disability discrimination make up an increasing percentage of overall charges

Despite the overall downward trend of charges of discrimination, the numbers of disability-related discrimination charges have remained fairly consistent. For example, there were just over 25,000 disability-related charges of discrimination filed in 2014, while nearly 23,000 were filed in 2021. As a result, disability-related charges made up over 37% of all charges in 2021, despite making up only roughly 29% of charges filed in 2014. At the same time race-related charges of discrimination fell in both total numbers and as a percentage of the total charges during that same time period.

Looking ahead:

While economic and political uncertainty may make it difficult to predict whether the overall downward trend of discrimination charges will continue, these specific data points discussed above suggest that Texas-based educational employers will continue to benefit from being proactive in preventing retaliation and discrimination, especially disability discrimination. As ever, trusted attorneys at Thompson & Horton stand ready to assist with training and other prevention strategies, as well as representation in the event your educational institution is faced with an EEOC charge.