United States: Annual Report On EEOC Developments – Fiscal Year 2016

By Barry A. Hartstein, Greg Coulter, Tessa Gelbman, Kevin Kraham, Grady B. Murdock, Terrence H. Murphy, Peter J. Petesch, Paul Prather, Ilyse Wolens Schuman, Jessica Agarwal, Julia Baxter, Betsy Cammarata, R. Keith Chapman, Jamie Chu, Anton Dirnberger, Ryan L. Eddings, Rachel Enoch, Brendan Fitzgerald, Matthew G. Gallagher, Michelle Gomez, Sarah J. Gorajski, Greg Greubel, Jennifer Harpole, Sami Hasan, Katherine Hinde, Samson Huang, Joseph Lazazzero, Melissa McDonagh, Brandon R. Mita, Elisa Nadeau, Victoria Nsikak, Emily T. Patajo, Kristy L. Peters, Benson E. Pope, Adam Primm, Jennifer Savion, Meredith C. Shoop, Cooper Spinelli, Kellie A. Tabor, William Trachman, Amy Ryder Wentz, and Thomas Whiteside on February 27, 2017

This Annual Report on EEOC Developments—Fiscal Year 2016 (hereafter "Report"), our sixth 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 the EEOC's achievements and setbacks, 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 — A Review of the EEOC's Systemic Initiative: Tracking its Progress, the EEOC's Current Priorities, and Key Developments in FY 2016—serves as an in-depth summary of the entire Report. This opening chapter sets the stage with a particular focus on the EEOC's systemic initiative. This chapter highlights key developments involving the systemic initiative in recent years and announced priorities moving forward. This portion of the Report also references major decisions, Commission programs, and settlements achieved over the past fiscal year. Areas touched upon in the opening chapter are discussed in greater detail in subsequent Report sections.

Part Two discusses EEOC charge activity, litigation and settlements in FY 2016, 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 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, 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 2016.

Part Five of the Report focuses on FY 2016 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) 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; (4) class discovery issues in EEOC litigation, including bifurcation, identification of class members and/or communication with the class, and other discovery in pattern-or-practice litigation; (5) other critical issues in EEOC litigation, including reliance on experts, class litigation, and background check litigation; (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, and decided appellate cases in FY 2016. Appendix C includes information on select subpoena enforcement actions filed by the EEOC in FY 2016. 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.