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January 8, 2013

Annual Report on EEOC Developments – Fiscal Year 2012

Authors: Barry Hartstein, Greg Coulter, Nancy Delogu, Sue Douglas, Edward Ellis, Shanthi Gaur, Jane Ann Himsel, Marcy McGovern, Grady Murdock, Terrence Murphy, Peter Petesch, Ilyse Schuman, Julie Adams, Julia Arnold, Mindy Baldwin, Keith Chapman, Sebastian Chilco, Kalisha Chorba, Jamie Chu, Ryan Eddings, Brendan Fitzgerald, Matthew Gallagher, Sarah Gorajski, Artie Jones, Joseph Lazazzero, Nicolette Lee, Larry Martinez, Jacquelyn Meirick, Christopher Michalski, Brandon Mita, Brian Mosby, Sarah Moss, Hilary Muckleroy, Shannon Gibson, Elisa Nadeau, Kelly Nash, Yasmeen Omidi, Emily Patajo, Kristy Peters, Benson Pope, Suzanne Potter-Padilla, Meredith Shoop, Kellie Tabor, and Jaime Novikoff
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Over the years, Littler has provided periodic reports on significant cases, regulatory developments and other activities involving the Equal Employment Opportunity Commission (EEOC or "the Commission"). While such guidance is intended to update employers on significant EEOC developments as they arise, we believe that employers can also benefit from an annual update and overview of key EEOC developments. This Annual Report on EEOC Developments – Fiscal Year 2012 (hereafter "Report"), our second annual report, is designed as a comprehensive guide to significant EEOC developments over the past fiscal year. 

A substantial portion of this year's Report focuses on the EEOC's systemic initiative. On February 22, 2012, the EEOC issued its Strategic Plan for Fiscal Years 2012-2016, which underscores that over the next several years a significant emphasis will be placed on systemic investigations and related litigation. The EEOC has defined systemic cases as "pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location." The EEOC provided more specific details concerning the areas it will focus on in its Strategic Enforcement Plan, which was approved by the Commission on December 17, 2012. 

Part One of the Report provides an overview of EEOC charge activity, litigation and settlements over the past year, including highlighting the types and location of lawsuits filed by the Commission. As anticipated, there has been a continued focus on systemic and multiple victim investigations and lawsuits filed by the EEOC. Significant settlements also are highlighted. This year we are highlighting settlements reported by the EEOC that exceeded $1 million stemming from conciliation or court settlements. We also have added two new appendices in this year's Report – a list and summary of appellate cases in which the EEOC has been involved as the appellant or as an amicus and a list of select dispositive motions decided on the merits in litigation where the EEOC was a party. 

In Part Two, key regulatory developments are reviewed, including the Commission's activities beyond formal regulatory efforts, and areas in which the EEOC plans to devote its attention over the coming year. Aside from discussion of the EEOC's Strategic Plan, as supplemented by the Strategic Enforcement Plan, the Report highlights the Commission's updated Guidance on criminal history and new rules discussing the "reasonable factor other than age" (RFOA) defense under the Age Discrimination in Employment Act (ADEA). References are made to more comprehensive Littler updates and/or reports for in-depth discussion of the topic, as applicable. Anticipated trends also are discussed.  

Part Three reviews EEOC investigations, particularly as part of the Commission's systemic initiative, and the basis for the EEOC's broad based authority. The Report summarizes recent administrative subpoena enforcement actions at the district court level and decisions by the appellate courts. Issues addressed include EEOC requests for information involving: (1) broad geographic coverage and (2) confidential information. Other noteworthy developments discussed include EEOC efforts to communicate ex parte with former managers, burdensomeness challenges, and jurisdictional disputes. Appendix D to this report also includes a list and summary of all subpoena enforcement actions initiated by the Commission over the past year. 

Part Four highlights key court cases, again focusing primarily on systemic and class-type cases, and addresses a number of topics, including: (1) pleading deficiencies raised by employers and recent EEOC attacks on employer responses to complaints; (2) unreasonable delay and use of the laches defense; (3) statutes of limitations cases involving both pattern or practice claims and other types of cases; (4) employer challenges based on the EEOC's alleged failure to meet its conciliation obligations prior to filing suit; (5) intervention-related issues; (6) class discovery and general discovery issues in EEOC litigation, as filed by employers and the EEOC; (7) favorable and unfavorable summary judgment rulings and lessons learned; and (8) trial related issues. 

We are hopeful that this Report serves as a useful resource for employers in their EEOC compliance activities and provides helpful guidance when faced with litigation involving the EEOC.

To read the Littler Report, please click here.