Federal employment litigation is on the rise. A key factor driving this increase may be the growing lack of employee engagement, as workers feel more disconnected and dissatisfied with their employers. This disengagement led employees to be more proactive in gathering concrete evidence for discrimination and retaliation claims. Employers must prioritize fostering engagement to reduce the risk of costly litigation and protect their bottom line by decreasing turnover, increasing productivity and loyalty, etc. Read on to explore the key factors driving these trends and what steps employers can take to foster a more engaged and compliant workforce.

The Equal Employment Opportunity Commission (EEOC) received more charges, filed more lawsuits, and secured more monetary relief for employees in fiscal year 2023 than in the previous fiscal year according to the Society for Human Resource Management (SHRM), continuing a recent trend. Specifically, during fiscal year 2023, the EEOC reported that it filed a total of 143 lawsuits on behalf of alleged victims of workplace discrimination—an increase of more than 50% over fiscal year 2022 filings. This may be partially due to the fact that the EEOC received 81,055 new charges of discrimination in 2023—a more than 10% increase over the previous year. In the same year, the EEOC contact center handled 10% more calls from the public and 25% more emails compared to fiscal year 2022.

The events of recent years, including the #MeToo movement, the “Black Lives Matter” movement and the 2023 implementation of the Pregnant Workers Fairness Act (PWFA), as well as the fact that the EEOC has recently implemented more user-friendly processes for reporting instances of discrimination and retaliation, may help explain such trends. However, employee engagement, i.e., involvement, commitment, and enthusiasm for work and the workplace, or lack thereof, i.e., “quiet quitting” stemming in part due to the aftermath of the COVID-19 pandemic, may be the greatest culprit. According to a recent Gallup survey, employees in the United States “continued to feel more detached from their employers” in 2023, “with less clear expectations, lower levels of satisfaction with their organization, and less connection to their mission and purpose” than they did in 2019 and even in 2020 during the thick of the pandemic. This is particularly true for full-time, on-site employees whose job responsibilities can be performed remotely.

That said, the increase in hybrid and remote work necessitated by the pandemic has galvanized “bad actors” by making them feel as if they can “get away with” their actions, according to SHRM, and made the use of written communication—such as emails, virtual calls, text messages and social media—more prevalent. This, in turn, has increased the ability of charging parties to present more concrete evidence in support of their employment discrimination claims.

The most recent Gallup data shows that U.S. employee engagement stagnated at the end of 2023 and remains below its high in early 2020. Specifically, while the percentage of “actively disengaged workers” decreased to approximately 16% in 2023 from 18% in 2022, only 33% of workers could actually be considered “engaged” throughout 2023.

In addition to imposing costs associated with employee lawsuits, Gallup reports that having employees who are considered to be not engaged (approximately 50% of all U.S. employees in 2023) and/or actively disengaged (approximately 16% of all U.S. employees in 2023) accounts for approximately $1.9 trillion in lost productivity nationally.

How can employers increase employee engagement and, in turn, protect their profits and reputations and lessen the risk of workplace lawsuits? Employers should:

• Adopt clear and easily accessible anti-discrimination, harassment, and retaliation policies (and corresponding reporting policies). This includes clear documentation of the reasons for any personnel actions and having leadership model policies demonstrating inclusive work environments.
• Set clear expectations when assigning tasks and encourage growth with timely, specific feedback—both critical and positive.
• Provide opportunities for team members to use skills or strengths that they enjoy. If an employee can do what they enjoy 20 to 30% of the time, engagement will soar.
• Regularly explain context and provide the big picture when working on a project. Relatedly, when making decisions, explain why the decision has been made to teach discernment and judgement.
• Express regular and frequent appreciation for work and acknowledgment of effort.

Employers should also consider adopting flexible on-site and remote policies that appeal to the younger generations of employees (i.e., Generation X, Millennials, and Generation Z employees) that have spurred the current trends in the lack of employee engagement. Employers should encourage collaboration by soliciting and acting upon younger workers’ ideas and opinions. Employee engagement—particularly in light of the current trends—can provide many benefits. Those benefits, according to a 2020 Gallup report, include lower absenteeism, less turnover, fewer safety-related incidents, reduced employee theft and better performance on quality, productivity, customer loyalty and profitability metrics.

Reprinted with permission from the December 20, 2024 issue of The Legal Intelligencer© 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Tracy LaLonde is founder and Chief Joychiever at Joycheiver, a workplace engagement consultancy firm.