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.
On November 15, 2011, the EEOC announced the publication of the Fiscal Year (FY) 2011 Performance and Accountability Report (PAR). (pdf) The PAR measures the EEOC’s performance and financial accountability based on its Strategic Plan for FY 2007 through FY 2012. During FY 2011 the EEOC received a total of 99,947 charges -- the highest number of charges in its 46 year history. Since FY 2006, there has been a dramatic increase in the level of charge activity, except for a minor dip in FY 2009, as shown by the following:
|Fiscal Year||Number of Charges|
Employers Should Expect Continued Pressure to Timely Respond to Discrimination Charges
It is anticipated that during FY 2012 the EEOC will place continued pressure on employers to timely respond to discrimination charges. Based on performance standards for FY 2011 (which ended Sept. 30), the EEOC was expected to resolve 51% of its charges within 180 days. As of the end of FY 2011, the Commission had only processed 40.7% of its charges in 180 days or less. The EEOC attributed its failure to meet its target on its large pending backlog or inventory of charges, the increased number of charges and shortage of front line staff. Notwithstanding, the EEOC underscored that it reduced its inventory from FY 2010 by more than 8,000 charges. Regardless of this reduction, as of the end of FY 2011, the EEOC still had a backlog of 78,136 charges.
Employers should anticipate that EEOC investigators will have greater pressure placed on them by District Directors during the coming year to hit the 180-day target, which means that the EEOC may not be particularly receptive to granting extensions of time for the initial response to a charge, and may also set very short timelines for responding to any supplemental requests for information. Certain EEOC offices (e.g. Chicago District Office), have a longstanding policy of not granting an employer any extensions for initial responses to a charge.
Continued Focus on Systemic Investigations and Litigation
In March 2006, as part of the EEOC’s Systemic Task Force Report, the EEOC reported that “combating systemic discrimination should be a top priority at [the] EEOC and an intrinsic, ongoing part of the agency’s daily work.” While the EEOC had been involved in systemic investigations long before the Task Force was formed, the EEOC clearly has been committed to expanding this initiative since 2006. The EEOC’s Systemic Task Force defines 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.”
In the 2011 PAR, the EEOC underscored that the agency “places a high priority on issues that impact large number of job seekers, and employees,” and “therefore devoted resources to investigating and litigating cases of systemic discrimination as a top agency priority.” The EEOC has invested in resources to focus on these cases, hiring experts in the fields of statistics, industrial psychology and labor market economics who will partner with district offices to work on larger cases. The agency says it will continue to assess whether additional or different types of expertise would aid in building the systemic program
The EEOC also highlighted its coordination efforts, including “systemic coordinators, lead investigators, and attorneys with a dedicated portal for shared access to national case information, systemic libraries, and systemic guidance documentation” within its Document Management System. The PAR also referred to the EEOC’s expanded use of its “CaseWorks” system, “which provides a central shared source of litigation support tools that facilitate the collection and review of electronic discovery and enable collaboration in the development of cases for litigation.”
At the end of FY 2011, the EEOC was involved in 580 systemic investigations (as compared with 465 at the end of FY 2010), involving 2,067 separate charges. There also has been a steady increase in the number of Commissioner charges, which are charges initiated by the EEOC, rather than by a complainant, to investigate systemic discrimination by an employer.. As an example, there were 47 Commissioner charges in FY 2011, as compared to 39 Commissioner charges in FY 2010. Even more striking is the fact that there were only 15 Commissioner charges in investigation as of March 2006, when the systemic initiative began.
The FY 2011 PAR also referred to having filed 39 “subpoena enforcement and other actions,” which typically involve systemic investigations. The EEOC reported that it had “resolved” 36 of these actions by the end of FY 2011. In comparison, the EEOC filed only 21 subpoena enforcement actions in FY 2010.
As part of its systemic initiative, the EEOC also reported focusing on “building systemic enforcement partnerships,” both within the EEOC and with other federal agencies. The EEOC pointed to cooperative efforts among various field offices, citing the filing of a systemic lawsuit against a private sector employer based on such efforts. The EEOC also referred to a pilot project with the DOL’s Office of Federal Contract Compliance Programs (OFCCP) in which the two agencies “shared systemic case information” and “subsequently met to discuss case strategies and available information for further examination of specific employers.”
In dealing with “strategic enforcement,” such as equal pay, the EEOC referred to playing a leading role in developing an “integrated, interagency civil rights agenda” to address compensation discrimination. Aside from the National Equal Pay Enforcement Task Force, which met during the summer of 2010 and developed various recommendations, follow up efforts included a February 8, 2011 forum hosted by the EEOC in which the EEOC, DOJ and OFCCP met with one another, which thereafter led to various training and pilot programs focusing on equal pay issues.
EEOC Litigation and Systemic Initiative
For FY 2011, the EEOC filed 261 merit-based lawsuits across the U.S. This was an increase of 11 lawsuits over FY 2010. This included a total of 177 individual lawsuits and 84 “multiple victim” lawsuits (i.e., 32% of the total).
In reviewing all new court filings, the EEOC reported that the lawsuits filed included 162 Title VII claims, 80 ADA claims, 26 Age Discrimination in Employment Act (ADEA) claims and 2 Equal Pay Act (EPA) claims.
With respect to the EEOC’s efforts on behalf of “multiple victims” and the EEOC’s systemic initiative, the FY 2011 PAR noted as follows:
- For FY 2011, the EEOC completed work on 235 systemic investigations that resulted in 35 settlements or conciliation agreements, eight of which included at least 100 individuals. The EEOC reported recovering $9.6 million in settlement of the various systemic cases;
- For FY 2011, 96 systemic investigations resulted in “reasonable cause” determinations;
- Among the 443 lawsuits on its active docket at the end of FY 2011, 116 (i.e., 26%) involved alleged multiple victims and 63 (i.e., 14%) involved challenges to systemic discrimination;
- Among the 84 multiple victim suits filed in FY 2011 23 were systemic cases with at least 20 known expected class members. The EEOC described the FY 2011 systemic filings as “9 percent of all merit filings,” which was “the largest volume of systemic suit filings since tracking started in FY 2006.”
A total of 277 merits lawsuits were resolved in FY 2011, resulting in $90.9 million in monetary recovery. Broken down by types of discrimination charges, Title VII claims were involved in 215 resolutions; ADA claims in 42; ADEA claims in 26; and EPA claims in 2 resolutions. With respect to monetary recovery for direct, indirect and intervention lawsuits by statute, the Commission secured $54.3 million in Title VII resolutions, $8.4 million in ADEA resolutions, $27.1 million in ADA resolutions, and $1.1 million in resolutions involving more than one statute.
Finally, in reviewing its efforts over the past year, the EEOC placed a strong emphasis on its mediation program, commenting, “The EEOC’s mediation program has continued to be a very successful part of our enforcement operations." The EEOC reported that for FY 2011, the EEOC’s private sector mediation program resulted in the “highest number of resolutions in the history of the program, with a total of 9,831 resolutions, 5 percent more than the 9,362 resolutions reported in FY 2010.” The EEOC referred to obtaining more than $170 million through the mediation program, which was an increase from $141 million in FY 2010.
The EEOC reported that according to a survey of participants in the mediation program 96.9 percent reported confidence in the program and stated that they would return to the EEOC’s mediation program in the future.
The EEOC also referred to expanded employer participation in Universal Agreements to Mediate (UAMs), which refer to an employer’s commitment to consider mediating charges of discrimination. As of the end of FY 2011, the EEOC had a cumulative multi-year total of 1,998 UAMs, which the EEOC referred to as an 11.8 percent increase from FY 2010.
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