“Many states, counties, cities, and towns have their own laws prohibiting discrimination, as well as agencies responsible for enforcing those laws. We call these state and local agencies “Fair Employment Practices Agencies” (FEPAs). Usually the laws enforced by these agencies are similar to those enforced by EEOC.”[i] States and cities (including New York State and New York City) have entered into a work sharing agreement with the EEOC. What does this mean for our organizations? Does it have an impact on how we should operate or how we manage workplace allegations and investigations?
Work Sharing Agreements:
- Under these terms, both the EEOC and state authority (NYS Division of Human Rights) or City (NYC) can designate the other as its agent for receipt of charges.
- What does this mean? If a charge is received by one partner under the agreement, it is deemed received by the other.
- “Moreover, these agreements typically proved that the state entity can waive its rights to process such a charge referred to it by the EEOC, which as the effect of permitting the federal agency to process the charge without waiting for the 60-day period to expire.
- Many such agreements have an automatic waiver provision, which means that as soon as the charge is filed with the EEOC, the EEOC can begin processing it without going through the motions of referring it back to the state authority.
- It also means that the grievant need not file with the state agency within 240 days of the unlawful practice, but, instead, has a full 300 days within which to take the initial step of filing a charge with the federal agency.”[ii]
- “You can file your charge with either the EEOC or with a Fair Employment Practices Agency. If the charge is initially filed with EEOC and the charge is also covered by state or local law, EEOC dual files the charge with the state or local FEPA (meaning the FEPA will receive a copy of the charge), but ordinarily retains the charge for processing.
- If a FEPA has a contract with EEOC, a Charging Party may request that the EEOC review the determination of the FEPA. EEOC will conduct a review only if the request is submitted in writing within fifteen (15) days of receipt of the FEPA’s determination.”[iii]
Confused yet? To summarize, New York State and New York City have a working agreement with the EEOC, if a charge is filed, it is sent with the state or city, it is sent to the EEOC as well, if it falls within the 300-day requirement, under current federal law. “The EEOC contracts with approximately 90 FEPAs nationwide to process more than 48,000 discrimination charges annually.”[iv]
The FY 2020 data show that retaliation remained the most frequently cited claim in charges filed with the agency – accounting for a staggering 55.8 percent of all charges filed – followed by disability, race, and sex. Specifically, the charge numbers show the following categories of discrimination, in descending order of frequency (NOTE: These percentages add up to more than 100 percent because some charges allege multiple bases.):
- Retaliation: 37,632 (55.8 percent of all charges filed)
- Disability: 24,324 (36.1 percent)
- Race: 22,064 (32.7 percent)
- Sex: 21,398 (31.7 percent)
- Age: 14,183 (21.0 percent)
- National Origin: 6,377 (9.5 percent)
- Color: 3,562 (5.3 percent)
- Religion: 2,404 (3.6 percent)
- Equal Pay Act: 980 (1.5 percent)
- Genetic Information: 440 (0.7 percent)
The EEOC resolved 70,804 charges in FY 2020 and increased its merit factor resolution rate to 17.4 percent from 15.6 percent the prior year. The agency responded to over 470,000 calls to its toll-free number and more than 187,000 inquiries in field offices, including 122,775 inquiries through the online intake and appointment scheduling system. The agency also reduced its inventory of pending charges by 3.7 percent.
The EEOC secured $439.2 million for victims of discrimination in the private sector and state and local government workplaces through voluntary resolutions and litigation. The comprehensive enforcement and litigation statistics for FY 2020, which also includes detailed breakdowns of charges by state, are posted on the agency’s website at www.eeoc.gov/statistics/enforcement-and-litigation-statistics.
[ii] Joel Wm. Friedman, Examples & Explanations: Employment Discrimination. Third Edition (Wolters Kluwer 2017).