Annual Report on EEOC Developments – Fiscal Year 2020

This Annual Report on EEOC Developments—Fiscal Year 2020 (hereafter “Report”), our tenth annual publication, 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 One examines the impact the COVID-19 pandemic has had on equal employment opportunity law, and provides general EEO guidance dealing with “return to work” issues. In addition, based on the current focus on the COVID-19 vaccine, a significant portion of this section focuses on EEO and related guidance involving the vaccine, including guidance provided by the EEOC. Because the issue of employee vaccinations is multi-dimensional, this section discusses both EEO issues and other legal considerations. The section also addresses the ongoing debate whether, at this juncture, employers should consider mandatory vaccinations or other options as a recommended practice. Appendix A to this Report includes examples of litigation involving employer vaccination policies and practices; although there is not yet EEO litigation involving COVID-19 vaccinations, a review of lawsuits involving the influenza vaccine may serve as a useful starting point for dealing with accommodation issues.

Part Two outlines EEOC charge activity, litigation and settlements in FY 2020, 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 B to this Report. A discussion of cases in which the EEOC filed an amicus or appellate brief can be found in Appendix C.

Part Three focuses on the changing composition of the EEOC, its regulatory activities, and other agency priorities and initiatives. This chapter includes a discussion of current and planned formal rulemaking, potential changes to the Commission during the Biden administration, and the EEOC’s renewed interest in religious discrimination.

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. Recent case developments involving two important issues also are addressed in this section of the Report: (1) recent court decisions involving the strict time limitations in challenging EEOC subpoenas applicable to Title VII and ADA investigations; and (2) recent court decisions involving documents completed at the EEOC prior to perfecting a charge, which courts have been relying on in broadly interpreting the time limitations for filing a charge. Appendix D to this Report supplements this section in summarizing subpoena enforcement actions filed by the EEOC during FY 2020.

Part Five of the Report focuses on FY 2020 litigation in which the EEOC was a party. This discussion is broken down into numerous topic areas, including: (1) pleading deficiencies raised by employers and the EEOC; (2) statutes of limitations cases involving both pattern-or-practice and other types of claims; (3) intervention and consolidation of claims with private counsel representing charging parties; (4) class issues in EEOC litigation; (5) other critical issues in EEOC litigation, including protective orders, ESI and experts; (6) general discovery issues in litigation between the parties; (7) favorable and unfavorable summary judgment rulings, which also are summarized in greater detail in Appendix E; (8) default judgments against employers; (9) impact of bankruptcy proceedings; (10) trial-related issues and those tied to remedies and settlements; and (11) circumstances in which courts have awarded attorneys’ fees to prevailing parties.

Appendices A-E are useful resources that should be read in tandem with the Report. Appendix A discusses cases in which parties sued employers for their mandatory vaccination policy. Appendix B includes summaries of significant EEOC consent decrees, conciliation agreements, judgments, and jury verdicts. Appendix C highlights appellate cases where the EEOC has filed an amicus or appellant brief, and decided appellate cases in FY 2020. Appendix D includes information on select subpoena enforcement actions filed by the EEOC in FY 2020. Appendix E 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.

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.