|
On November 19, 2015, the Equal Employment Opportunity Commission (EEOC) issued its annual Performance and Accountability Report (PAR), which highlights key EEOC developments over the past fiscal year, ending September 30, 2015. This Insight provides a preliminary review of selected statistics highlighted in the PAR and discusses the EEOC’s successes and failures during the past fiscal year, particularly focusing on the EEOC’s “national priorities” discussed in the EEOC’s Strategic Enforcement Plan. A comprehensive review of key EEOC statistics, regulatory developments and litigation initiated by the EEOC will be discussed in Littler’s upcoming Annual Report on EEOC Developments: Fiscal Year 2015, which will be published in early 2016. |
The EEOC reached major milestones in FY 2015. The agency celebrated its 50th anniversary and the 25th anniversary of the Americans with Disabilities Act. As significantly, the EEOC was a party to two cases before the U.S. Supreme Court, EEOC v. Mach Mining, LLC1 and EEOC v. Abercrombie & Fitch Stores,2 and had a prominent role in Young v. UPS,3 as the impact of the agency’s 2014 guidance on pregnancy discrimination4 was discussed in the Court’s decision.
This Insight provides a summary of key agency and case developments over the past fiscal year, concentrating on the EEOC’s focus on systemic5 investigations and related litigation and the EEOC’s current priorities based on its Strategic Enforcement Plan (SEP).6
Agency Developments
The past fiscal year started out with some difficult challenges for the EEOC based on a report issued on November 24, 2014, by Lamar Alexander (R-TN), Chairman of the Senate Committee on Health, Education, Labor and Pensions (HELP). The report found:
[T]oday’s EEOC is pursuing many questionable cases through sometimes overly aggressive means—and, as a result, has suffered significant court losses that are embarrassing to the agency and costly to taxpayers. Courts have found EEOC’s litigation tactics to be so egregious they have ordered EEOC to pay defendants’ attorney’s fees in ten cases since 2011. The courts have criticized EEOC for misuse of its authority, poor expert analysis, and pursuit of novel cases unsupported by law.7
The November 2014 report by Sen. Alexander immediately preceded the confirmation hearing for David Lopez, who was nominated for a second term as General Counsel for the EEOC. While Lopez faced significant challenges, he was approved for a new term as General Counsel on December 3, 2014 by a Senate vote of 54-43. On that same day, Charlotte Burrows was approved as a new EEOC Commissioner by a Senate vote of 93-2. The Commission ended the year with a 3-2 Democratic majority, with Jenny Yang appointed by President Obama as the Chair of the Commission, and David Lopez continuing in his role as General Counsel. These developments cleared the way for the EEOC’s continued focus on its systemic initiative and its current list of priorities.
Even so, the agency faced additional criticism by the Republican members of the HELP Committee in an oversight hearing held on May 19, 2015.8 During this hearing, Sen. Tim Scott (R-SC) was critical of the agency spending resources on EEOC-initiated litigation where a discrimination charge had not even been filed.9 General Counsel Lopez responded by stating such lawsuits involved only a “small fraction” of the EEOC’s litigation docket. He responded to criticism regarding one pending large-scale age discrimination lawsuit, which was initiated based on a Commissioner’s charge, explaining, “There is a lot of information in that case with evidence of age discrimination.” Lopez otherwise highlighted what he viewed as some major achievements during his role as General Counsel, but also stated that litigation should be the “enforcement tool of last resort.”10
Chair Yang also testified at the Senate HELP Committee hearing and highlighted what she viewed as significant achievements by the agency, including “ensuring efficient and effective enforcement by using integrated strategies that encourage prompt and voluntary resolution of charges,” explaining:
- Voluntary compliance remains the preferred means of preventing and remedying employment discrimination.
- In FY 2014, EEOC’s mediation program successfully helped employers and employees voluntarily resolve 7,846 (77%) of the 10,221 mediations it conducted.
- Over the past three years, EEOC has worked with employers to conciliate and voluntarily resolve a greater percentage of cases than in recent history—and with successful conciliations rising from 27% in FY 2010 to 38% in FY 2014. The success rate for the conciliation of systemic charges is even higher (47%), particularly significant as these charges are more complex and have the potential to improve practices for many workers.
- In 2012, the Commission reaffirmed the importance of systemic enforcement in its Strategic Plan and Strategic Enforcement Plan. Because of these efforts, at the end of FY 2014, 57 out of 228, or 25% of the cases on the EEOC’s litigation docket, were systemic. This is the largest proportion of systemic lawsuits on the EEOC’s docket since tracking began in FY 2006.
- In 2014, EEOC’s success rate for conciliation of systemic charges of discrimination was 47%.11
Key Statistics for FY 2015
On November 19, 2015, the EEOC issued its annual Performance and Accountability Report (referred to as the EEOC’s “PAR”) for Fiscal Year 2015.12 The PAR reviews the agency’s achievements over the past fiscal year, and includes statistics relating to EEOC charge activity and litigation.
According to the FY 2015 PAR, there was a minor increase in the number of discrimination charges compared to those filed in FY 2014 (89,895 in FY 2015 compared to 88,878 in FY 2014). Even so, the level of charge activity has decreased over the past few years. There were 4,000 fewer charges filed in FY 2015 compared to FY 2013 (93,727 charges) and an approximate 10,000-charge decrease from FY 2011 (99,947 charges).13
Despite the general decrease in the number of charges filed with the agency over the past couple of years, the EEOC’s backlog of private-sector charges (referred to by the agency as the “Private Sector Charge Inventory”) has continued to increase. During FY 2015, the backlog increased to 76,408, increasing slightly from 75,935 charges in FY 2014.14 While this inventory increase was modest, the EEOC had already raised concerns at the end of FY 2014 based on the “major challenge” of its charge inventory, which had increased 7.28% from 70,781 charges to 75,935 between FY 2013 and FY 2014.15 The backlog increased despite hiring 90 investigators. Even with turnover, the net increase in investigators was approximately 60. The EEOC attempted to explain the backlog challenge by referring to the impact of “losing experienced investigators” and the need “to ensure high quality standards for charge processing,” but acknowledged, “As it does each year, the EEOC faces a fundamental challenge in efficiently processing the pending inventory of private-sector discrimination charges while improving the quality of charge processing.”16
Even so, the most significant trend to closely monitor from an employer’s perspective is the EEOC’s focus on systemic investigations. During FY 2015, there was a slight increase in the number of systemic investigations completed by the EEOC, and more importantly, in the total monetary recovery based on the resolution of systemic investigations. The EEOC completed 268 systemic investigations in FY 2015, compared to 260 in FY 2014, but the amount obtained in resolving systemic charges increased dramatically from $13 million to $33.5 million.17 While this increase at first blush may be alarming, it is more in line with the amounts recovered in FY 2012 and FY 2013 when the EEOC obtained $36.2 million and $40 million, respectively, through the resolution of systemic investigations.18 More troublesome, however, is the continued increased likelihood of a reasonable cause finding based on a systemic investigation. The EEOC made a reasonable cause finding in 99 out of the 268 systemic investigations completed in FY 2015 (36.0%),19 which is in a range similar to the number of reasonable cause findings in FY 2014 and FY 2013 (45% and 35%, respectively).20 This number is in stark contrast to the EEOC’s published statistics showing that historically, the EEOC has issued reasonable cause findings in less than five percent (5%) of the charges filed with the agency.21
Next, turning to litigation, the EEOC has continued its “new normal” by decreasing the number of lawsuits it files. In FY 2015, the agency filed only 142 merits lawsuits.22 While this was a slight increase from the 133 lawsuits filed in FY 2014,23 this trend is similar to the number filed in FY 2013 (131 merits lawsuits) and FY 2012 (122 merits lawsuits), and in sharp contrast to the number of suits filed in prior years (250 or more).24
Among the 142 lawsuits filed in FY 2015, a total of 42 involved “multiple victims,” which included 16 systemic lawsuits (i.e., impacting 20 or more individuals).25 While this number may not appear to be significant, a review of the EEOC’s cases on its active docket at the end of FY 2015 shows that approximately 40% of the EEOC’s active docket (88 out of 218 cases) involves multiple-victim lawsuits, which includes 48 pending lawsuits involving challenges to alleged systemic discrimination (22%).26 Also worth noting is that among the 142 lawsuits filed by the agency during FY 2015, the largest number of lawsuits involved claims under the ADA—37% (53 lawsuits).
Key Procedural Developments
Over the past fiscal year, the EEOC’s multi-step procedure for investigating and conciliating discrimination claims prior to suing was closely reviewed by the courts. The...
