Annual Report on EEOC Developments – Fiscal Year 2015

This Annual Report on EEOC Developments—Fiscal Year 2015 (hereafter “Report”), our fifth annual Report, is designed as a comprehensive guide to significant EEOC developments over the past fiscal year. The Report does not merely summarize case law and litigation statistics, but also offers an analysis of what the EEOC has and has not accomplished, and the implications of those outcomes.  By focusing on key developments and anticipated trends, the Report provides employers with a roadmap to where the EEOC is headed in the year to come.

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

Part One—Looking Back at FY 2015: A Review of EEOC Successes and Failures, and Significant Cases and Developments to Watch for in FY 2016—is a preview to the Report as a whole. This chapter encapsulates the EEOC’s litigation and policy achievements and setbacks for the fiscal year, topics that are fleshed out in the chapters that follow.

Part Two discusses EEOC charge activity, litigation and settlements in FY 2015, focusing on the types and location of lawsuits filed by the Commission. More details on noteworthy consent decrees, conciliation agreements, judgments and jury verdicts are summarized in Appendix A to this Report. A discussion of cases in which the EEOC filed an amicus or appellate brief can be found in Appendix B.

Part Three focuses on legislative and regulatory activity involving the EEOC. This chapter includes a discussion of agency initiatives beyond formal rule-making efforts, including the Commission’s issuance of both formal and informal guidance on a variety of contentious issues, and the holding of public meetings on several agency priorities.  This chapter highlights recent and emerging trends at the agency level, as well as the Commission’s efforts to adhere to its Strategic Plan. References are made to more comprehensive Littler updates and/or reports for a more in-depth discussion of the topic, as applicable.

Part Four summarizes the EEOC’s investigations and subpoena enforcement actions, particularly where the EEOC has made broad-based requests to conduct class-type investigations. Case law addressing the EEOC’s authority to do so is discussed in this chapter as well. Appendix C to this Report is a companion guide, summarizing select subpoena enforcement actions undertaken by the EEOC during FY 2015.

Part Five of the Report focuses on FY 2015 litigation in which the EEOC was a party. This discussion is broken into several topic areas, including: (1) pleading deficiencies raised by employers; (2) statutes of limitations cases involving both pattern-or-practice and other types of claims; (3) the state of employer challenges based on the EEOC’s alleged failure to meet its conciliation obligations prior to filing suit following the U.S. Supreme Court’s decision in EEOC v. Mach Mining; (4) intervention-related issues, both when the EEOC attempts to enter a case through intervention and when third parties attempt to join as plaintiffs in EEOC-filed lawsuits; (5) class discovery issues in EEOC litigation, including the scope of discovery in class-based or pattern-or-practice cases, the use of experts, ESI, and discovery of EEOC-related documents; (6) general discovery issues involving both employers and the EEOC in litigation between the parties; (7) favorable and unfavorable summary judgment rulings and lessons learned; (8) trial-related issues; and (9) circumstances in which courts have awarded attorneys’ fees to prevailing parties.

Appendices A-D are a useful resource that should be read in tandem with the Report.  Appendix A includes summaries of significant EEOC consent decrees, conciliation agreements, judgments, and jury awards. Appendix B highlights appellate cases where the EEOC has filed an amicus or appellant brief in FY 2015. Appendix C includes information on select subpoena enforcement actions filed by the EEOC in FY 2015. Finally, Appendix D highlights notable summary judgment decisions by claim type.

We hope 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.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.