LEL Flash | Issue: January 2014

FLASH header

Issue: January 2014

Special Feature

The EEOC: Looking Back on 2013, What to Expect in 2014

In December, 2013, the U.S. Equal Employment Opportunity Commission released its Performance and Accountability Report for fiscal year 2013. The last year was filled with challenges for the agency, from financial constraints due to sequestration, a 40-hour furlough that affected all staff, to a two-week-long government shutdown. Despite these challenges, the agency secured a record $372 million in monetary relief for victims of employment discrimination through its administrative enforcement procedures, including mediation and conciliation. This is the highest level of monetary relief ever obtained by the agency through the administrative enforcement process. The agency also obtained $39 million in monetary relief through its litigation program, and resolved 209 merits lawsuits. Trial attorneys at the EEOC won nine trials in FY 2013, resolved another case by consent decree during the trial, and lost one jury trial and one bench trial.

In FY 2013, the EEOC received 93,727 charges. This is a decrease from the prior three years, but is still one of the top five years in terms of the number of charges filed. Investigators resolved 97,252 charges, and managed to reduce the average resolution time for private sector charges by 21 days. The federal sector program received just over 7,000 requests for adjudicatory hearings, and resolved almost as many complaints (6,789) in the year. Trial attorneys filed 131 merits lawsuits in FY 2013, including 21 systemic cases.

What's ahead for FY 2014?

In 2013, the EEOC adopted and implemented its Strategic Enforcement Plan, which identified six enforcement priorities for the private, public and federal sectors. These are national priorities and will guide the agency's enforcement and litigation efforts over the next several years. But the Commission doesn't expect every EEOC field office to implement every SEP priority identically. Field offices are developing District Complement Plans to identify how each district will implement the six priorities described in the agency's Strategic Enforcement Plan.

The first SEP priority is eliminating barriers in recruitment and hiring, and the EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities. An office may target particular industries within its district that have a history of underrepresentation of women or minorities. Investigators may analyze census demographic data and EEO reports and may look at job postings and application forms to discover potential violations.

The second SEP priority is protecting immigrant, migrant and other vulnerable workers. The EEOC will target job segregation, harassment and trafficking cases, as well as policies affecting workers who may be unaware of their employment rights, or reluctant or unable to exercise them. Field offices may use targeted outreach to ensure that vulnerable populations understand their employment rights, and may work with advocacy organizations to ensure that employees can exercise their rights.

The third SEP priority is addressing emerging and developing issues. This is a broad category, but count on EEOC investigators and attorneys to take note of and action on issues related to significant events, demographic changes, developing theories, judicial decisions, and administrative interpretations that affect equal employment law. Field offices may choose to focus on emerging issues under a particular statute, or may pay closer attention to specific employee populations, as may be appropriate to respond to the demographics or challenges particular to each EEOC district. Nationally, the SEP has already identified three developing issues the EEOC will target:

  1. certain issues under the Americans with Disabilities Act (including reasonable accommodations and qualification standards);
  2. accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act and the Pregnancy Discrimination Act; and
  3. coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as appropriate.

The fourth SEP priority is enforcing equal pay laws. Under this priority, the EEOC will target compensation systems and practices that discriminate on the basis of gender. Field offices are particularly encouraged to use directed investigations and Commissioner charges to facilitate enforcement these laws.

The fifth SEP priority is preserving access to the legal system. The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, as well as policies or practices that impede the EEOC's investigative or enforcement efforts. Investigators and attorneys are always on the lookout for overly broad waivers, settlement provisions that prohibit filing charges or cooperating with the EEOC, and other retaliatory actions that are described in EEOC's Guidance on Non-Waivable Employee Rights Under EEOC-Enforced Statutes.

The sixth SEP priority is preventing harassment through systemic enforcement and targeted outreach. Harassment is still one of the most frequent complaints raised in EEOC charges, and in the last four years, one third of the systemic lawsuits filed by the agency challenged harassment in the workplace. District, area and local offices may conduct targeted outreach campaigns to deter harassment in the workplace, and may continue to partner with advocacy and employer groups to fulfill this priority.

Continued Focus on Systemic Investigations and Litigation

At the end of FY 2013, systemic cases comprised 23% of the agency's active docket. One can expect the proportion of systemic lawsuits to remain at this level, if not slightly increase. On the whole, the EEOC expects to focus on cases that will have broad impact due to the number of individuals, employers or employment practices involved, or on issues that are particularly suited to government enforcement. But most field offices also value a diversified docket, to ensure that they are advancing the law under all the statutes the EEOC enforces. Field office directors and regional attorneys still have discretion to pursue charges and cases that are meritorious and important to the particular needs of their districts.

Regulatory Updates in 2014

The EEOC is also continuing to review its regulations and guidance for areas that need improvement or updating. This quarter, the agency is planning to update its joint regulations with the U.S. Department of Justice and the U.S. Department of Labor's Office of Federal Contract Compliance Programs, both related to coordinating the investigation of charges under Title I of the ADA and the Rehabilitation Act. Updating these regulations is expected to improve the efficiency of complaint processing procedures, especially when a complainant files a complaint with one agency that should more appropriately be investigated by another agency. The EEOC is planning to similarly update its joint regulation with the Department of Justice relating to processing complaints of employment discrimination filed against recipients of federal financial assistance.

Now that the EEOC's FY 2014 budget is settled, the agency can continue to work toward its mission to "stop and remedy unlawful employment discrimination." Staffing levels might be down, resources are always limited, but with the number of discrimination charges filed last year still close to 100,000, the EEOC has plenty of work to do in the coming year.

Anna M. Pohl, Senior Trial Attorney, U.S. Equal Employment Opportunity Commission*

*The views expressed in this article are the author's and do not necessarily reflect the views of the EEOC or the United States.

Contents

Opening Page

Comments

Flash Co-Chairs:
Jeremy J Glenn, Meckler Bulger et al | Monique R. Gougisha, Ogletree Deakins | Amy F. Shulman, Broach & Stulberg LLP | Jennifer R. Spector, National Labor Relations Board

American Bar Association Section of Labor and Employment Law
321 N Clark | Chicago, IL 60654 | (312) 988-5813