Strategic / Policy Initiatives

 

By Gerald L. Maatman, Jr., Christopher J. DeGroff, Matthew J. Gagnon and Alex W. Karasik

Seyfarth SynopsisOn 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.

th7Y6M6GN7By Gerald L. Maatman, Jr., Christina M. Janice and Alex W. Karasik

Seyfarth Synopsis: With the publication of a ten-year review of its systemic discrimination program on July 7, 2016, the EEOC seeks to blunt employer and judicial scrutiny of the EEOC’s litigation practices by emphasizing its internal staffing and technological improvements, the gains it has made over time in number of people served, programmatic relief achieved, and monetary relief obtained, and its vision for the future as a nationwide law enforcement agency uniquely positioned to overcome challenges faced by the private bar in avoiding binding employment arbitration agreements and securing class-wide relief under Title VII.

As we have blogged about here  here,and here, the EEOC’s systemic discrimination program repeatedly has come under judicial scrutiny for its failure to satisfy Title VII’s jurisdictional requirements that it investigate, provide notice of, and attempt to conciliate claims before launching broad, expensive litigation against employers on those claims, as well as specific failures to bring legally sufficient or factually sustainable litigation. A 2006 Systemic Task Force Report to the Chair of the Equal Employment Opportunity Commission raised specific concerns about EEOC’s inconsistent investigations, lack of training and expertise, lack of capacity for data analyses, and an absence of incentives to properly implement a coordinated, nationwide systemic discrimination program.

Now under the leadership of Commissioner Jenny Yang, a former plaintiff’s class action lawyer for the Washington D.C. firm of Cohen, Milstein, Sellers & Toll, PLLC, the EEOC published on July 7, 2016 a ten-year a review of its efforts to improve its systemic discrimination litigation program and objectives.  Reporting an overall increase in litigation and raw dollars recovered from employers through litigation or conciliation, the EEOC review focuses on its internal efforts to grow its investigatory and litigation capacities and to transform itself into a “national law enforcement agency.”  Restating its purpose that “[t]ackling systemic discrimination — where a discriminatory pattern or practice or policy has a broad impact on an industry, company or geographic area — is central to the mission of EEOC,” the EEOC report signals employers, legislators, and courts alike that its systemic program will proceed undaunted by judicial challenges to its practices, and will continue to be driven by metrics that “incentivize” investigations, conciliations and systemic work.

Employers should pay particular attention to the metrics driving EEOC performance and the trajectory of its systemic litigation program.

Key Findings

From the fall of 2013 through August 2014, EEOC Commissioner Yang and her staff conducted a review of the EEOC’s systemic program since the implementation of the 2006 Systemic Task Force Report.  As a result of its review, the EEOC claims to have “made considerable progress in achieving a truly nationwide, coordinated, and strategic systemic program.”  Some of the key findings published in the report include:

– Investments in hiring and training staff focused on systemic work have produced a 250 percent increase in systemic investigations in the past five years.

– Concerted efforts to reach voluntary resolutions of systemic investigations have resulted in the conciliation success rate tripling from 21% in fiscal year 2007 to 64 percent in fiscal year 2015.

– The systemic litigation program has achieved significant impact, with a 10-year success rate of 94 percent for systemic lawsuits.

– The EEOC tripled the amount of monetary relief recovered for victims in the past five fiscal years from 2011 through 2015, compared to the relief recovered in the first five years after the Systemic Task Force Report.

Although EEOC does not define “success,” the report makes clear that EEOC measures success in three ways: numbers of employees who benefit from a systemic investigation and/or lawsuit, targeted programmatic relief, and the realization of dollars.

In 2014, less than 1,000 individuals were said to have benefited from successful EEOC systemic lawsuits, a sharp decline from the nearly 8,000 individuals in 2013.  However, the 2015 number soared past these figures, with nearly 10,000 individuals benefiting from successful EEOC systemic lawsuits, the most since 2008.  The EEOC reports that “significantly more individuals directly have benefited from EEOC systemic lawsuits that through individual or small multi-victim suits brought by EEOC.”

While the percentage of systemic lawsuits in the active litigation docket has remained roughly the same from 2013-2015, ranging from 22% to 25%, the EEOC reports that the percentage of resolutions with targeted equitable, or “programmatic” relief has jumped from 64% to 81.2% over the last three years.

In terms of monetary relief from the combined resolutions of systemic investigations and systemic lawsuits, the EEOC trumpets that its results have jumped from 15 resolutions totaling $5.99 million in 2006 to 296 resolutions totaling $80.28 million in 2015, with over 16,000 individuals receiving monetary relief that year.

Targeting Enforcement

Statistically, the EEOC continued to focus heavily on disability and race claims. From 2011-2015, 32% of the successful conciliations of systemic investigations involved disability discrimination, with the next highest being race at 17%.  The EEOC’s challenges to employer hiring practices dominated with 23% of successful conciliations, followed by reasonable accommodation practices at 21%.  These areas can be expected to continue as target enforcement areas for the EEOC.

In terms of federal sector compliance, the EEOC reported issuing a series of federal sector decisions finding that discrimination based on gender identity and sexual orientation constitutes sex discrimination prohibited by Title VII.  The report signals the EEOC’s objective of increasing its activity in these developing areas of law.

The report also makes an unusually direct pitch for the EEOC to be the litigation partner of choice in overcoming mandatory employment arbitration agreements and the challenges to the plaintiffs’ bar of bringing statistical disparate impact cases under Title VII in the wake of the Supreme Court’s decision rendering class certification based on mere statistical evidence untenable in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)

What This Means For Employers

While it certainly is not difficult to imagine the EEOC or any entity positing its best numbers when publishing a self-review, employers absolutely need to pay attention  to these results. First, the data illustrates that the EEOC is putting more time and resources into systemic cases, and as a result, has increasingly become more aggressive in their pursuit of “big fish” employers. While the number of individuals said to have benefited from systemic lawsuits has teeter-tottered up and down the last few years, the report manifests an aggressive agenda to pursue these prime lawsuits.  Thus, employers should expect systemic investigations to continue on the uptick.

Given their success in the disability context, especially with regards to hiring and reasonable accommodation, the EEOC likely will not stray from what has worked.  Thus, employers facing challenges in this area need to focus on strategies of compliance and risk avoidance.  For businesses with nationwide operations, this will require heightened communication amongst various regions and sectors to ensure compliance with the law.

The EEOC trumpets that it has hired systemic investigators, social scientists and labor economists to support its systemic discrimination program in every district, and boldly states that “[t]hey have the expertise and training to effectively manage complex investigations, to analyze relevant data, and to develop statistical evidence.”  The EEOC reports that “[i]n most years since 2008, EEOC has provided systemic training to lead systemic investigators and systemic coordinators.”   While this reporting now leaves the EEOC with little to no excuse when facing judicial scrutiny for failing to comply with Title VII’s mandate of investigating, notifying employers of the claims against them and attempting to conciliate those claims as predicates to litigation, this reporting also signals that the EEOC has increased its trained resources to grow its program.

Further, the EEOC reports a significant investment in technologies that allow personnel to access and analyze employer, regional or industry workforce demographic data to inform charges and investigations on a nationwide basis.  Employers cannot presume that investigators will deal with charges individually without reviewing all EEOC charges and investigations against an employer, and industry data, for potential systemic opportunities.

Finally, the EEOC reports a slow but steady increase in the use of Commissioner’s Charges as a vehicle for enforcement.  Employers may expect the EEOC to continue to increase its reliance on this tool in their toolkit.

The EEOC’s report states that in the future it will focus on three key, although vaguely defined, objectives in order to expand the agency’s impact and better serve the public, including: (1) executing national strategies to address persistent and emerging systemic issues; (2) advancing solutions that promote lasting opportunity in the workplace; and (3) strengthening the agency’s technology and infrastructure. With increases in systemic program resources and incentives to generate big outcomes in terms of individuals benefited, programmatic relief obtained and dollars generated, employers can expect the EEOC to cast a wide range of nets across the county in hopes that some of their catches will result in the next big systemic lawsuit.

Our loyal blog readers can also find this post on our Workplace Class Action Blog here

 

 untitledBy Christopher DeGroff, Gerald L. Maatman, Jr., and Howard Wexler

With little fanfare, the EEOC  quietly announced on February 18, 2016 its adoption of new “Nationwide Procedures for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties.” Importantly, the Nationwide Procedures retroactively apply to all EEOC requests for position statements made on or after January 1, 2016.  Pursuant to the Nationwide Procedures:

“EEOC will provide the Respondent’s position statement and non-confidential attachments to Charging Parties upon request and provide them an opportunity to respond within 20 days. The Charging Party’s response will not be provided to Respondent during the investigation.” (emphasis added).

Employers often produce highly sensitive materials in defense of an EEOC Charge, with assurances that EEOC files are confidential.  For example, employers often provide confidential comparator information concerning other similarly-situated employees to demonstrate consistent, non-discriminatory approach in cases of alleged disparate treatment.  Employers also sometimes provide the EEOC with protected commercial and trade materials as exhibits to these position statements.  Although it is not unheard of for the EEOC to provide a Charging Party with some of the information submitted by an employer in its Position Statement to get his or her take on the defenses asserted by an employer, the wholesale production of the position statement itself and its supporting documents represents a sea change in practice.   If included with a position statement, “eyes-only” confidential company information could go directly to an individual who is, by definition, disgruntled, with no clear protections as to how those materials can be used.  In litigation, these materials are disclosed to a private party only after iron-clad and detailed protective orders are put in place.  Based on the Nationwide Procedures, this information is available to any all Charging Parties simply “upon request” with no provisions that the information be kept confidential.

But all is not as it seems. On the other hand, Charging Parties are often in denial about the legitimate, non-discriminatory basis of a personnel decision. As such, giving a Charging Party and their legal counsel access to the employer’s position statement and accompanying exhibits allows for a playing field where the continued prosecution of an EEOC charge — or of the filing of a subsequent lawsuit — is no longer due to the worker’s misapprehension or inability to face the reality of the employer’s defense. In other words, in many cases, this may assist an employer by educating a worker and his or her lawyer about the weaknesses in their case and eliminate the filing of lawsuits.

Implications for Employers

Based on the Nationwide Procedures, employers must consider being far more measured about what is contained in, or attached to, position statements given that they likely will end up in a former employee’s hands.  Indeed, the Nationwide Procedures could actually result in more EEOC-initiated subpoena actions, as employers must be more concerned about who will ultimately have access to their confidential documents and may be less willing to voluntarily provide certain information in a position statement.

How the Nationwide Procedures will play out in practice remains to be seen, including whether other information shared during an investigation (e.g., responses to additional requests for information) will also be provided to Charging Parties.  Stay tuned, as we will report any updates as they develop.

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

numbersBy Gerald L. Maatman Jr., Christina M. Janice, Christopher DeGroff, and Matthew Gagnon

On February 11, 2016, the EEOC released its Fiscal Year 2015 Enforcement Data (here), which tracked closely with the observations and analyses that we published for our readers over a month ago in EEOC-Initiated Litigation: Case Law Developments in 2015 and Trends to Watch for in 2016, Seyfarth Shaw LLP (January 2016).

So what is behind the numbers, and what do they mean for employers?

The answer is “plenty.”

First, the numbers show FOCUS. The data released by the EEOC confirms its continued priority on addressing allegations of systemic discrimination, which the EEOC defines as involving a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.

Second, the numbers show PRIORITY. Overall, the EEOC received 89,385 charges last year; within that universe of charges, 28,000 charges concerned systemic discrimination (31% of all charges received), as well as initiating 42 lawsuits involving multiple victims of discriminatory policies (29% of all lawsuits filed), including 16 lawsuits it characterized as systemic (11% of all lawsuits filed). Considering that the EEOC filed 142 merits lawsuits last year, systemic litigation is the headline here, as 42 of the lawsuits targeted “systemic issues.”
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The data released also confirmed that in 2015 allegations of unlawful discrimination based on disability remained a rapidly expanding area of the EEOC’s enforcement portfolio, with allegations of disability discrimination appearing in 26,968 charges (30.2% of all charges received). Disability claims increased a reported 6% over 2014, and surpassed allegations of discrimination based on sex, which appeared in 26,396 charges (29.5% of all charges received). Disability discrimination was second only to race for the number of charges received in 2015 (31,027 allegations, appearing in 34.7% of all charges received).

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Retaliation, which frequently is alleged in tandem with discrimination based on a protected characteristic such as race, sex age or disability, increased 5% and was the most common allegation made, appearing in 39,757 charges (44.5% of all charges received).

As we reported (here), the EEOC has turned up the heat on issuing new enforcement guidelines on retaliation before the end of the Obama presidency. These guidelines, a copy of which can be viewed here with accompanying press release here, focus on expanding activities enforceable by the EEOC as “protected” to include participating in any way in internal investigations, requesting wearing a head scarf as a religious accommodation, discussing pay and engaging in activities which may be considered concerted activities under the National Labor Relations Act.

The time period for public comment on the EEOC’s proposed enforcement guidelines ends February 24, 2016.

Implications For Employers

The EEOC’s 2015 data and proposed enforcement guidance clearly signal the EEOC’s intention to continue to pursue systemic claims, with a focus on disability, pay equity, religious accommodation and retaliation.

Employers should be vigilant to recognize potential vulnerabilities in these areas, and to enhance human resources and reporting functions to document solid management practices and avoid the risk of becoming embroiled in litigation. Our annual report, which provides detailed analysis and helpful information for employers, can be ordered here free of charge.

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

calmBy Gerald L. Maatman, Jr.

Today I had the privilege of attending the 24th Annual Employment Practices Liability Insurance Program hosted by the American Conference Institute in New York City (I moderated a session on EEOC litigation).

Constance Barker, one of the five Commissioners at the U.S. Equal Employment Opportunity Commission, gave the keynote address at the Program. Her presentation was fascinating, and focused largely on the future enforcement litigation activities of the EEOC for 2016. As the tag line of the old E.F. Hutton TV commercial suggested, “when the EEOC talks, employers should listen….” Commissioner Barker’s views and pronouncements are important for employers in crafting their workplace compliance strategies.

Focus Of Possible EEOC Activities

Commissioner Barker noted that 2016 is apt to see the EEOC issuing various regulations and guidance as the final year of the Obama Administration winds down. As she said at today’s Program, “expect a lot of activity…” In addition to regulations on GINA, the ADA, and wellness plans, Commissioner Barker asserted that other guidance is likely in the areas of retaliation, joint employer liability, leave policies, and national origin discrimination relative to Muslim workers. Commission Barker advised employers to take a close look at the proposed retaliation guidance, which she termed was “huge, huge, huge…” In particular, she cited the guidance’s expansive view of what constitutes protected activity, and how even discipline over “do not discuss compensation” policies would constitute retaliation (on the premise that discussing pay is protected activity).

Systemic Litigation Targets

Commissioner Barker opined that the healthcare, restaurant, and manufacturing industries would see significant litigation activity in 2016. Moreover, race, gender, pregnancy, and leave issues will be “litigation hot spots” for those industries. With nearly 25% of the EEOC’s docket now focus on systemic litigation involving assertion of claims on behalf of groups of employees, Commissioner Barker said that “leave and accommodation policies” also will be prime targets for systemic litigation.

Commissioner Barker shared the view that certain leave policies are on the EEOC’s litigation radar screen, such as policies that cap leave at a certain number of days; policies that have no accommodation safeguards; “100% healed” policies; and policies prohibiting leave if a worker is not FMLA-eligible.

New Developing Areas

Commissioner Barker also predicted a continuing commitment by the EEOC to “develop the law” on joint employer concepts, LGBT rights, workplace arbitration, and protections for workers in the gig economy. She noted that various agencies – such as the NLRB – have been quite aggressive in expanding traditional notions of employer liability, and that employers should be mindful that the EEOC is sometimes aligned to those views too.

In broader terms, this squarely raises the issue of the proper role and responsibility of the EEOC. Should it enforce the law as written or expand the law to maximize the reach and public policies within employment discrimination prohibitions? Many critics of the EEOC have cited its litigation focus as further evidence that the Commission is an activist agency that is result-oriented and willing to do whatever it takes to pursue litigation enforcement strategies it deems appropriate.

This issue is sure to heat up further in 2016.

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

By Gerald L. Maatman, Jr.

At long last, the EEOC 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 litigation 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. 

Our analysis of its meaning for employers is here in a new LXBN video:

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

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
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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.