New Report Provides Insight on Increased Stakes For Employers In Combating Discrimination in the Workplace

Litter Mendelson Issues Annual Report on EEOC Activity That Highlights Increased Focus on Systemic Discrimination and Broad Based Investigations

CHICAGO, IL (January 9, 2013) – Littler Mendelson, P.C. (Littler), the nation’s largest employment and labor law firm representing management, has released its Annual Report on EEOC Developments – Fiscal Year 2012. The Report highlights the Equal Employment Opportunity Commission’s (EEOC’s) Strategic Enforcement Plan, approved by EEOC on December 17, 2012. It also details other recent pronouncements by the EEOC that the major Federal agency involved in fighting discrimination will be engaging in “targeted enforcement” and increase its focus on “systemic discrimination.” Such investigations and litigation will address alleged discriminatory patterns or practices of discriminatory conduct and/or discriminatory policies that have a “broad impact on an industry, profession, company or geographic location.” (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 when faced with investigations or litigation involving the EEOC.)

According to Littler’s Report, based on systemic investigations, the EEOC recovered $36 million for charging parties and others during FY 2012. This was four times the amount recovered in FY 2011 for systemic investigations, and this amount was based solely on its investigation and conciliation efforts, without even resorting to litigation. The EEOC completed work on 240 systemic investigations (cases with at least 20 expected class members), in which 94 resulted in “reasonable cause” determinations that the policies were discriminatory in nature.

“These statistics continue to be of great concern to employers,” according to Barry Hartstein, Executive Editor of the Report and leader of Littler’s EEOC core team. “This is the second year in which our Annual Report found that approximately 40 percent of the systemic investigations resulted in that determination compared to the fact that reasonable cause determinations are typically issued in less than five percent of charges that the EEOC investigates.”

The Littler Report indicates that the EEOC recovered a total of $365.4 million in monetary benefits in FY 2012, which was the highest level ever achieved through the administrative process. In addition, in settlement of 254 EEOC lawsuits, the EEOC recovered an additional $44.2 million.

Based on the EEOC’s newly issued Strategic Enforcement Plan, the EEOC is adopting a multi-pronged national law enforcement model that will focus on improved integration between EEOC offices, collaborating with other Federal agencies, such as the Department of Labor and Department of Justice, and cooperating with the private bar that also is involved in independently filing and joining the EEOC in discrimination lawsuits against employers. “The EEOC also will be leveraging technology to facilitate cross-office communication, including development of a ‘Systemic Watch List’ that tracks private sector charges and litigation with details on the applicable company,” according to Hartstein.

Littler’s Report identifies the six priorities that will be focused on by the EEOC in its “targeted enforcement” efforts: (1) eliminating systemic barriers in recruitment and hiring; (2) protecting immigrant, migrant and other vulnerable workers; (3) addressing emerging issues, including  the Americans with Disabilities Act (ADA), LGTB (lesbian, gay, bisexual and transsexual individuals) coverage under Title VII and accommodating pregnancy; (4) enforcing equal pay laws; (5) preserving access to the legal system and (6) preventing harassment through enforcement and targeted outreach.

Hartstein notes, “With the reelection of President Obama and the Democratic gains in Congress, the EEOC can be expected to pursue its agenda with renewed vigor and to revisit stalled initiatives, including providing ADA guidance and pursuing issues related to hiring procedures and practice, pregnant workers and workers with caregiving responsibilities and LGBT protection under Title VII.” 

As part of the EEOC’s strategic enforcement efforts, the Report points out that there will be more top-down monitoring concerning the types of lawsuits filed by the EEOC, and each of the District Offices will be required to bring a minimum number of lawsuits to the Commission for approval before filing.

Other notable findings in the Report include:

  • A summary of recent EEOC settlements and a spotlight on selected systemic lawsuits filed by the EEOC. Among reported settlements of $1 million or more, six involved race discrimination or related harassment (including one $11 million settlement), five involved sexual discrimination or harassment, five involved disability discrimination and three involved age discrimination.
  • Littler’s Report highlighting recent systemic lawsuits include various nationwide lawsuits filed by the EEOC, which is not limited by the strict rules under Rule 23 of Federal Rules of Civil Procedure in filing class action lawsuits against employers.
  • As in FY 2011, in FY 2012 a clear majority of the EEOC’s lawsuits were filed in the last two months of the EEOC’s fiscal year (August and September).
  • For FY 2012 the Commission filed 122 “merits” lawsuits, the fewest number in recent memory.  Among the 309 lawsuits on its active docket at the end of FY 2012, 75 (24%) involved alleged multiple victims and 62 (20%) involved challenges to systemic discrimination, thus showing that 44% of all pending matters involve claims on behalf of more than one purported victim.

For a complete summary of noteworthy EEOC settlements in Littler’s Annual Report on EEOC Developments, click here: http://www.littler.com/publication-press/publication/annual-report-eeoc-developments-fiscal-year-2012.

About Littler Mendelson

Littler Mendelson is the world’s largest labor and employment firm exclusively devoted to representing management.  With over 950 attorneys and 56 offices throughout the U.S. and globally, Littler has extensive resources to address the needs of U.S.-based and multi-national clients from navigating domestic and 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.