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January 22, 2014

Annual Report on EEOC Developments - Fiscal Year 2013

Authors: Barry Hartstein, Greg Coulter, Tessa Gelbman, Jane Ann Himsel, Grady B. Murdock, Terrence H. Murphy, Peter J. Petesch, Ilyse Wolens Schuman, Julie K. Adams, Jessica Agarwal, Julia S. Arnold, Mindy H. Baldwin, R. Keith Chapman, Sebastian Chilco, Kalisha Salome Chorba, Jamie Chu, Katherine Dix, Ryan L. Eddings, Brendan Fitzgerald, Matthew G. Gallagher, Sarah J. Gorajski, Jennifer Harpole, Artie Jones, Joseph A. Lazazzero, Nicolette J. Lee, Christopher Michalski, Brandon R. Mita, Brian L. Mosby, Sarah E. Moss, Hilary B. Muckleroy, Elisa Nadeau, Kelly M. Nash, Jaime L. Novikoff, Yasmeen Omidi, Emily T. Patajo, Kristy L. Peters, Benson E. Pope, Suzanne M. Potter-Padilla, Meredith C. Shoop, Kellie A. Tabor, and Emily Tyler
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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 2013 (hereafter "Report"), our third annual report, is designed as a comprehensive guide to significant EEOC developments over the past fiscal year.

This year's Report examines the EEOC's continued steps to implement its Strategic Enforcement Plan for Fiscal Years 2012-2016, including its focus on pursuing systemic cases. The EEOC considers "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."

At the outset, in the introductory chapter, as we approach the 50th anniversary of Title VII, we briefly look back at pivotal developments tied to the EEOC's enforcement authority, particularly the evolution of Title VII's statutory framework and key case developments tied to the growth of "pattern or practice" and class-type litigation initiated by the EEOC. Despite the agency's long history of having authority to pursue "pattern or practice" cases (i.e., starting with the 1972 amendments to Title VII), numerous issues remain unsettled, including: (1) the applicable burden of proof to use in class-type litigation; (2) the damages available based on such claims, including at what stage of the litigation certain damage claims, such as punitive damages, can be considered; (3) the applicable statute of limitations to apply when the EEOC is seeking relief on behalf of a group of individuals; and (4) the nature and extent of the EEOC's duty to engage in "conciliation" prior to filing class-type suits against an employer.

This year's Report is organized into the following sections:

Part One, entitled, "Reflections on Fifty Years of Title VII of the Civil Rights Act of 1964 and Unsettled Issues Involving Systemic Claims and Class-Based Litigation by the EEOC," highlights the statutory background, case developments and key issues that need to be addressed in any pattern or practice and/or class-based litigation initiated by the EEOC. A more expansive discussion of recent case developments involving key issues highlighted in this section is included in other sections of the Report.

Part Two of the Report provides an overview of EEOC charge activity, litigation and settlements over the past year, emphasizing the types and location of lawsuits filed by the Commission. Significant settlements, jury awards and judgments also are highlighted. More details on noteworthy consent decrees, conciliation agreements and judgments are summarized in Appendix A. Appellate cases involving the EEOC, either as an appellant or amicus curiae, are summarized in Appendix B.

Part Three reviews key regulatory developments in FY 2013, including the Commission's activities beyond formal rule-making efforts, and areas in which the EEOC plans to devote its attention over the coming year. For example, the Report highlights the Commission's Strategic Plan and Strategic Enforcement Plan, outlining the agency's list of priorities. Other noteworthy regulatory activities as well as current and anticipated trends are discussed in this section of the Report. References are made to more comprehensive Littler updates and/or reports for a more in-depth discussion of the topic, as applicable.

Part Four reviews EEOC investigations and subpoena enforcement actions, paying particular attention to instances in which the court granted the EEOC broad authority to conduct class-type investigations. This section highlights the decrease in subpoena enforcement actions, but also reviews key developments over the past year, including recent case authority addressing the importance of meeting key timelines in challenging EEOC subpoenas in Title VII and ADA cases. This section should be read in tandem with Appendix C to the Report, which summarizes the EEOC's litigation involving subpoena enforcement actions over the past year. Recent cases in which the courts have limited the scope of the EEOC's authority also are discussed in this section of the Report.

Part Five highlights key court cases addressing a number of topics, including: (1) pleading deficiencies raised by employers and recent EEOC attacks on employer responses to complaints; (2) unreasonable delay by the EEOC in its investigations and use of the laches defense in subsequent litigation; (3) statutes of limitations cases involving both pattern or practice and other types of claims; (4) employer challenges based on the EEOC's alleged failure to meet its conciliation obligations prior to filing suit; (5) intervention-related issues, both when the EEOC attempts to enter a case through intervention and when third parties attempt to join in as plaintiffs in litigation filed by the EEOC; (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; (8) trial-related issues; and (9) circumstances in which the courts have awarded attorneys' fees to employers after prevailing in lawsuits filed by the EEOC.

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

To read the Littler Report, please click here.