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January 26, 2012

New Report Provides Insight on EEOC Plan to Focus on Systemic Discrimination

Littler Mendelson Issues First Annual Report on EEOC Activity, Reveals Increased Focus on Systemic Discrimination and Broad-Based Investigations

Chicago, IL (January 26, 2012) – Littler Mendelson, P.C. (Littler), the nation’s largest employment and labor law firm representing management, released the inaugural edition of its Annual Report on EEOC Developments—Fiscal Year 2011. The report finds that the Equal Employment Opportunity Commission (EEOC) filed a record number of charges during Fiscal Year 2011, and employers were faced with the largest volume of systemic suits since the EEOC started tracking them in 2006. (Though the EEOC provides data on an annual basis, Littler’s Annual Report on EEOC Developments examines recent developments from an employer’s perspective and serves as a resource for employers in their compliance activities and when faced with litigation involving the EEOC.)

According to Littler’s report, the EEOC received 99,947 discrimination charges in FY 2011, the highest number of charges in its 46-year history. This is a more than 31 percent increase over 2006, when 75,768 charges were filed. The EEOC completed work on 235 systemic investigations (cases with at least 20 known expected class members), in which 96 resulted in “reasonable cause” determinations that the policies or practices were discriminatory in nature.

“These statistics are disconcerting for employers,” according to Barry Hartstein, lead author of the report and leader of Littler’s EEOC core team. “Reasonable cause determinations are typically issued in only five percent of charges that the EEOC investigates, but our report found that a staggering 40 percent of systemic investigations resulted in that determination.”

The EEOC’s recently proposed Strategic Plan, issued on January 18, 2012, makes clear that attacking systemic discrimination will be one of the EEOC’s primary objectives over the coming years. According to that plan, “systemic cases are those that address a pattern, practice or policy of alleged discrimination and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.”

The Littler report points out that the EEOC has significant flexibility in making broad-based requests for information and documents from employers during both systemic and other EEOC investigations, but points to numerous cases illustrating  that there has been a more level playing field in lawsuits filed by the agency. The EEOC has been subjected to particularly close scrutiny in various court decisions dealing with alleged systemic discrimination. Although currently on appeal, employers were awarded over $7 million in attorneys’ fees based on a “sue first, ask questions later” litigation strategy on the part of the EEOC, based on the view of judges in two recent district court opinions.

“Litigation should always be a last resort because there are significant costs and risks to both sides, including the EEOC,” added Hartstein. “Employers today recognize that equal employment opportunity is not only the law of the land, but it is also in the best interests of an organization. This Report is designed as a resource for employers to help facilitate meaningful dialogue with the EEOC.”

Other notable findings in the report include:

  • The EEOC reported filing 261 “merits” lawsuits across the U.S., which included a total of 177 individual lawsuits and 84 “multiple victim” lawsuits, which included 23 systemic cases.( According to the EEOC, “merits” lawsuits  involve lawsuits dealing with alleged violations of the EEO statutes enforced by the EEOC and suits to enforce administrative settlements.) Systemic cases were nine percent of all merits filings, which was the largest volume of systemic suit filings since tracking started in FY 2006.
  • Nearly 70 percent of the EEOC’s lawsuits were filed in the last two months of the EEOC’s fiscal year (August and September).
  • More than 50 percent of the EEOC’s court filings were in seven states: California, Texas, Georgia, North Carolina, Michigan, Illinois and Indiana.
  • Among the lawsuits filed, the two most frequent causes of action were claims of disability discrimination and retaliation.
  • Among reported settlements of $1 million or more, four lawsuits involved hostile environment claims, one involved failure to hire claims, one involved pregnancy discrimination, and two involved claims under the Americans with Disabilities Act.

Since FY 2006, there has been a dramatic increase in the level of EEOC charge activity.

FISCAL YEAR

NUMBER OF CHARGES

2006

75,768

2007

82,792

2008

95,402

2009

93,277

2010

99,922

2011

99,947

 

Click here for a complete summary of noteworthy EEOC settlements in Littler’s Annual Report on EEOC Developments

About Littler Mendelson

With more than 850 attorneys and 56 offices, Littler Mendelson is the largest U.S.-based law firm exclusively devoted to representing management in employment and labor law matters. As the only U.S. member of the Ius Laboris global alliance, Littler has extensive resources to address the needs of multi-national clients, from navigating international employment laws and labor relations issues to applying corporate policies worldwide. Established in 1942, the firm has litigated, mediated and negotiated some of the most influential employment law cases and labor contracts on record.