Annual Report on EEOC Developments — Fiscal Year 2017

This Annual Report on EEOC Developments—Fiscal Year 2017, our seventh 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 analyzes the EEOC's successes, setbacks, changes, and strategies.  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 OneChallenging Harassment in the Workplace: A Key Priority at the EEOC—discusses the current spate of harassment claims and the EEOC's efforts to stem the tide. This opening chapter includes an analysis of the EEOC's proposed Enforcement Guidance on Unlawful Harassment, and practical recommendations to help prevent and address unlawful harassment in the workplace. Appendices F-I of this Report contain various checklists contained in the EEOC's Report by the Select Task Force on the Study of Harassment in the Workplace.

Part Two outlines EEOC charge activity, litigation and settlements in FY 2017, focusing on the types and location of lawsuits filed by the Commission. More details on noteworthy consent decrees, conciliation agreements, judgments and jury verdicts, and new case filings involving harassment claims, are summarized in Appendices A & E to this Report, respectively. 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 not only formal rule-making efforts, but also informal guidance on a variety of new and evolving workplace concerns, and the holding of public meetings on several agency priorities.  This chapter highlights recent and emerging trends at the agency level, particularly in this transition year as a new Commission takes shape. 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 2017.

Part Five of the Report focuses on FY 2017 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; (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, and the use of experts; (6) general discovery issues involving both employers and the EEOC in litigation between the parties; (7) favorable and unfavorable summary judgment rulings; (8) trial-related issues; and (9) circumstances in which courts have awarded attorneys' fees to prevailing parties.

Appendices A-I are useful resources 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, and decided appellate cases in FY 2017. Appendix C includes information on select subpoena enforcement actions filed by the EEOC in FY 2017. Appendix D highlights notable summary judgment decisions by claim type. Appendix E provides an overview of all of the FY 2017 cases filings involving harassment claims. Appendices F-I contain various checklists from the EEOC Task Force Report on Harassment in the Workplace to help employers evaluate their anti-harassment efforts and address claims once they arise. 

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.

Click here to read the full Report.

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.