Last week included two bombshells for civil rights. In a single day, the president took to Twitter to ban transgender people from military service, and the Justice Department asserted in a court filing that U.S. laws don’t cover workplace discrimination based on a worker being lesbian, gay, bisexual, or transgender (a position that echoes Attorney General Jeff Sessions’ stance on gay rights). That one-two punch contradicts a four-year-old policy at the federal Equal Employment Opportunity Commission (EEOC) that says such cases qualify as sex-based discrimination under the Civil Rights Act. It also flies against the rulings of many federal courts, including the 7th U.S. Circuit Court of Appeals, which ruled in April that the law does, indeed, protect gay employees.
Meanwhile, the number of LGBT-related charges filed by employees has been steadily growing, from 1,100 in fiscal year 2014, the first full year of the policy, to 1,768 in fiscal year 2016. The amount of money the EEOC recovered through litigation and arbitration in those cases doubled in the same time, from $2.2 million to $4.4 million. Those statistics are still pretty small in the grand scheme, however. In FY 2016, the EEOC received 26,934 sex discrimination charges. Total charges, including all types of discrimination (such as race and disability), plus harassment and retaliation, totaled 97,443. Last year, the EEOC won a total of $482 million for employees through mediation, settlements, and litigation.
The EEOC only takes on a sampling of all types of charges that it rules have merit, leaving most employees to pursue a lawsuit on their own. Based on a new analysis of data, we reported today how this private litigation turns out: While a large majority are settled, only a tiny fraction end in success for the plaintiff in court.