Seyfarth Synopsis: On November 15, 2018, the EEOC released its annual Performance and Accountability Report (‘PAR”) for Fiscal Year 2018 (here) – a year-end report card of sorts, and a critical publication for employers to consider as they analyze the EEOC’s activities over the past year, and its anticipated direction for the future.
In its first year under the Strategic Plan for Fiscal Years 2018 through 2022 (“Strategic Plan” or “Plan”) (blogged about here), the EEOC reported significant increases in its outreach efforts and enforcement actions, as it highlighted new intake procedures, extensive training programs, and aggressive litigation. Particularly noteworthy was the EEOC’s track-record relative to workplace sexual harassment litigation, which has become a top priority as the #MeToo movement has spotlighted the issue.
The 2018 PAR is a “must read” for corporate counsel, as it provides valuable insights into the agency’s mission, as well as warnings that employers should heed.
Raking In Recoveries
In FY 2018, the EEOC recovered more than $505 million for alleged discrimination victims. This represents a significant jump from $484 million in FY 2017 (see more here), and $482.1 million in FY 2016 (see more here). But while the total monetary relief figure ballooned, the relief obtained through mediation, conciliation, and settlement declined from $355.6 million in FY 2017 to $354 million in FY 2018. Conversely, litigation recoveries jumped to $53.6 million in FY 2018 from $42.4 million in FY 2017 (the FY 2016 and 2015 numbers were $52.2 million and $65.3 million respectively, more closely mirroring this year’s figures).
Firing Up The Filings
The EEOC reported filing 199 merits lawsuits in FY 2018, a slight uptick from the 184 merits lawsuits it filed in FY 2017. This included 117 suits on behalf of individuals, 45 non-systemic suits with multiple victims, and 37 systemic suits. The EEOC labels a case “systemic” if it “has a broad impact on an industry, company or geographic area.”
For employers, the 37 systemic lawsuits is a particularly noteworthy figure. In FY 2017, the Commission filed 30; in FY 2016 it filed 18; and in FY 2015 it filed 16. The acceleration in systemic lawsuits illustrates that the EEOC is not backing down on its agenda of aggressively litigating “bet-the-company” cases. Given the heightened financial exposure in systemic litigation, this is one trend employers should certainly heed.
Making Its Mark In The #MeToo Movement
Workplace harassment has never been more in the forefront of the EEOC’s focus than it is today. The EEOC’s PAR emphasized that it reconvened the Select Task Force on the Study of Harassment in the Workplace for a public meeting, “Transforming #MeToo into Harassment-Free Workplaces,” to examine difficult legal issues and to share innovative strategies to prevent harassment. The Commission reported that it recovered a whopping $70 million for the victims of sexual harassment through administrative enforcement and litigation in FY 2018, up dramatically from $47.5 million in FY 2017. Unquestionably, given the increased visibility of workplace sexual harassment based on various high-profile media coverages in 2018, the Commission has turned up the heat on investigations and litigation in this area.
Balancing The Backlog
For several years, the EEOC has been working through its significant backlog of pending charges. As EEOC Acting Chair Victoria Lipnic noted in the PAR, “[s]oon after I became Acting Chair in 2017 I made addressing the backlog a priority, and as an agency, we began to share strategies that have been particularly effective in dealing with the pending inventory, while ensuring we are not missing charges with merit.” Chair Lipnic has made good on her word, noting the EEOC dramatically reduced its pending inventory in FY 2018 to 49,607 charges, a decrease of 19.5% from FY 2017 and 34% from FY 2015. One area that remains ripe for improvement, however, is the backlog of Freedom of Information Act requests, as the PAR reports that the EEOC’s FOIA backlog increased by 185% at the end of FY 2017, but only decreased by 7% in FY 2018.
Portal To The Future
As part of its mission to facilitate the intake process, the launch of a nationwide online inquiry and appointment system as part of the EEOC’s Public Portal resulted in a 30% increase in inquiries and over 40,000 intake interviews. These figures come as a result of the Commission’s recent commitment to enhance its Digital Charge System and allow technological advances to ease the burden caused by an increased volume of activity.
The Commission additionally noted that its outreach programs reached more than 398,650 workers, employers, their representatives and advocacy groups this past fiscal year at more than 3,900 events conducted by the EEOC. This reflects the EEOC’s commitment to preventing workplace harassment through proactive measures, while simultaneously increasing public awareness about the mission of the Commission.
Implications For Employers
There were those who believed the EEOC’s enforcement efforts would downshift under the current administration. Our year end reports, and the EEOC’s own PAR report card, demonstrates quite the opposite. The EEOC has made it clear that it is ramping up across the board, not slowing down. This includes a significant increase in filings, recoveries, and outreach efforts. The EEOC’s PAR is a helpful resource for employers to chart the danger areas in today’s tumultuous political and social environment. We will continue to report on the EEOC’s enforcement trends. Stay tuned.
Readers can also find this post on our Workplace Class Action blog here.