By Christopher DeGroff, Reema Kapur, and Gerald L. Maatman, Jr.

At long last, the EEOC has finally issued its FY 2013 Performance and Accountability Report (“PAR”) on the evening of December 16, 2013. For those waiting to see an interesting twist on the EEOC’s internal metrics, the PAR did not disappoint. The PAR details the EEOC’s activities from October 1, 2012 to September 30, 2013. The PAR is the agency’s internal annual report and reflects its assessment of its FY 2013 program and financial performance. The FY 2013 PAR provides critical insight into the EEOC’s strategic objectives as it closes in on the approximate half-way point of its 2012-2016  Strategic Enforcement Plan (“SEP”). It also reveals surprising departures from the agency’s stated objectives, possibly signaling that the agency may double-down in its 2014 enforcement efforts to make up for the goals its missed. 

Here are highlights of some of the “bangs” and “fizzles” and what these trends might mean for the future.

Half-Way Point For Current SEP

A key performance measure is the agency’s enforcement and litigation activity as compared to three strategic objectives outlined in the Commission’s Strategic Enforcement Plan. These objectives are: (1) combating employment discrimination through strategic law enforcement; (2) preventing employment discrimination through education and outreach; and (3) delivering excellent and consistent service through skilled and diverse workforce and effective systems.

Last year, EEOC Chair Jacqueline Berrien pointed out that the EEOC was in the early stages of implementing new Strategic Plan, noting it had made meaningful progress on its strategic objectives. With the FY 2013 PAR, the agency – and employers – have another year’s worth of EEOC enforcement and litigation data. As such, the FY 2013 PAR provides a great opportunity to look back at the FY 2012 PAR and make year-over-year comparisons of key metrics. Further, it shows that although the agency met some of the 14 performance measures identified in the SEP, it fell far short of others. 

So what are the “Bangs” and “Fizzles” from 2013?

BANG: With The SEP As A Roadmap, The EEOC Zeroed In On Specific Employment Practices

Systemic Lawsuit Quota Drives Enforcement And Litigation Activity: The launch of the current SEP underscored an evolution in the EEOC’s agenda.  In recent years, the agency’s enforcement and litigation agenda has gained a sharper edge, its enforcement aim has been more precise, and its pursuit of employers in certain industries and scrutiny of certain employment practices has been more dogged. In its quest to increase its impact even while its funding has dwindled, the EEOC has been actively pursuing “systemic cases,” including “pattern or practice, policy, or class cases where the alleged discrimination has a broad impact on an industry, occupation, business, or geographic area.” 

Under the SEP, the EEOC has set annual quotas for key performance measures for its enforcement and litigation activity. To that end, the agency’s stated goal is to ensure that systemic cases make up 22% to 24% of its litigation docket by FY 2016 with at least 20% of its annual litigation docket made up of systemic cases. 

In FY 2013, the EEOC continued to make strides to achieve this goal. According to the EEOC’s final tally of litigation activity, it filed 131 merits lawsuits during FY 2013. These included 89 individual suits, 21 non-systemic class suits, and 21 systemic suits.  While the influx of new systemic cases shows the EEOC means business, the numbers are even more significant when viewed in terms of the EEOC’s overall active docket. At the end of the 2013 fiscal year, the EEOC had 231 cases on its active docket, of which 46 (20%) were non-systemic class cases, and 54 (23%) involved challenges to systemic discrimination. Thus, systemic suits comprised 16% of all merits filings in 2013, and by the end of the year, represented 23.4% of all active merit suits – the largest proportion since FY 2006.

The EEOC’s goal to “do more with less” spilled over to its enforcement activity as well. By the end of the FY 2013, the EEOC had launched 300 systemic investigations resulting in 63 settlements or conciliation agreements that recovered approximately $40 million.

The bottom line – the EEOC has committed to bringing bigger and better lawsuits, both to its internal stakeholders and the political powers that hold the purse strings. Looking forward to FY 2014, we predict that systemic initiative will continue to be a key driver for the EEOC’s enforcement and litigation activity.  

Money Talks: EEOC Touts Record Monetary Recoveries: The EEOC gave itself high marks for securing $372.1 million in monetary benefits based on the resolution of administrative charges, $6.7 million more than recoveries in FY 2012. According to the EEOC’s tally, this is the highest level of monetary relief ever obtained by the Commission through the administrative process.   

The uptick in monetary recoveries may be driven, at least partially, by recent policy changes within the Commission requiring disclosure of the monetary terms of settlement agreements as a condition of approving settlement agreements. Thus, “record” recoveries could simply mean that the EEOC is now collecting more quality data regarding settlements.    

Intense Focus On “Emerging Issues:” In FY 2013, the EEOC emphasized that enforcing claims under the Americans With Disabilities Act (“ADA”) and under the Pregnancy Discrimination Act (“PDA”) are key agency goals. ADA and PDA claims fall under the umbrella of one of six national priorities, namely “Addressing Emerging and Developing Issues.” The SEP expressly refers to the following examples of “emerging” issues involving ADA law: “coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat, as refined by the Strategic Enforcement Teams,” and “accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act (PDA).”

In FY 2013, lawsuits alleging ADA claims accounted for 38% of the EEOC’s “merits” filings. Further, the EEOC resolved 59 lawsuits containing ADA claims for which it collected $14 million in monetary recoveries. Further, in a one-two punch, the EEOC reinforced its ADA enforcement and litigation initiatives by issuing four revised publications on May 15, 2013, that address changes to the definition of disability made by the ADA Amendments Act of 2008 (“ADAAA”), which took effect on January 1, 2009 (click here to read more). The ADAAA’s expanded definition of disability makes it easier for the EEOC and private plaintiffs’ counsel to assert that individuals with a wide range of impairments including cancer, diabetes, epilepsy and intellectual disabilities are protected by the ADA. The revised documents not only address the definitional changes, but also are designed to advance the SEP.

FIZZLE: EEOC Uses Shutdown As An Excuse To Punt Key Initiatives

Chair Berrien notes that the EEOC’s accomplishments in FY 2013 are particularly noteworthy given “extraordinary fiscal constraints and operational challenges,” including “a 40-hour furlough of the entire workforce, and threatened government shutdown.” At several points in the PAR, the Commission uses the “shutdown” as an explicit or implicit excuse for not delivering on key initiatives. Given that the shutdown happened on the very last day of the EEOC’s fiscal year, the Commission’s “the dog ate my homework” excuse is open to scrutiny and perhaps not entirely persuasive. 

Self-Assessment Is Not A Priority: In the SEP, the Commission set itself a goal of developing a draft Quality Control Plan (“QCP”) as a tool to assess the quality of the Commission’s investigations and conciliations. According to the FY 2012 PAR, the EEOC was to develop and implement this assessment tool in FY 2013, with a Commission vote to occur “no later than February 28, 2013.” Unfortunately, the EEOC’s Quality Control Plan (“QCP”) draft principles, released May 10, 2013, were so non-specific and high-level as to be essentially meaningless.

In the PAR, the EEOC states that the Commission vote on the draft QCP has now been postponed until FY 2014. Further, after the Commission votes (and presumably approves) the draft QCP, FY 2014 will serve as a baseline year. Specifically, in FY 2014, the EEOC will apply QCP criteria to a “statistically significant sample of investigations and conciliations” to develop projected targets for improved quality standards. Thus, according to the Commission, it will not “measure” the quality of its investigations or conciliations until FYs 2015 and 2016. 

The EEOC’s heel-dragging is at odds with its litigation stance. Likening the assessment of its pre-suit obligations to a “housekeeping issue,” the EEOC has strongly argued that it and not federal courts should police the quality of its investigations and conciliations (read more here and here). Thus, on the one hand, the EEOC is fighting to shut down federal courts’ ability to review its conciliation efforts for good and, on the other, it has failed to develop strong criteria to measure quality and has delayed its own performance review. 

District Complement Plans Delayed: While the SEP serves as a national blueprint for EEOC activity and is a key driver of the Commission’s national agenda, each district office also develops a district-level plan. The district complement plans are, for the most part, aligned with the national SEP but, notably, may identify additional targets for enforcement. The PAR indicates that the EEOC has delayed the development of district complement plans to FY 2014. This delay is vexing for employers who need to be aware of national and local enforcement and litigation priorities when assessing their risks. 

Implications for Employers

The PAR is the EEOC’s internal report card. It is the most revealing document the Commission publishes on an annual basis outlining its strategic objectives and evaluating its own performance. For employers that are dealing or will deal with the EEOC, the FY 2013 PAR is an important tool to take stock of the EEOC’s activities over the course of this year and, more importantly, where it is headed over the next fiscal year. 

Readers can also find this post on our Workplace Class Action blog here.