United States: Seyfarth Releases 2017 EEOC Litigation Report: Increased Enforcement Activity In A Year Of Political Transition And Uncertainty
Last Updated: January 4 2018

Seyfarth Shaw LLP has released its annual report on EEOC legal activities and court rulings, entitled EEOC-Initiated Litigation: Case Law Developments In 2017 And Trends To Watch For In 2018, the most definitive source of analysis that focuses exclusively on EEOC-related litigation.

Authored by Seyfarth lawyers Gerald L. Maatman, Jr., Christopher J. DeGroff, and Matthew J. Gagnon, this year's report provides detailed analysis of the major case filings and all decisions involving the EEOC in 2017. This past year, the EEOC faced a period of political transition under the new Trump Administration and Republican control of both houses of Congress. Despite this seismic shift in political geography, the aftershocks have not yet appeared to reach the agency in any measurable way. Indeed, at a time when many expected retrenchments, the EEOC's Fiscal Year 2017 was marked by a significant increase in enforcement activity. FY 2017 is also the first year of the EEOC's new Strategic Enforcement Plan ("SEP") for FY 2017-2021. This year, the report has been arranged in to three main parts:

  • Part I of this book will give a broad examination of the substantive theories that the EEOC has focused on in FY 2017 with respect to each of the six enforcement priorities identified in the new SEP. Those priorities are: (1) the elimination of systemic barriers in recruitment and hiring; (2) protection of immigrant, migrant, and other vulnerable workers; (3) addressing emerging and developing issues; (4) enforcing equal pay laws; (5) preserving access to the legal system; and (6) preventing harassment through systemic enforcement and targeted outreach.

    • Uncertainty In A Period Of Transition - Part I also discusses the significant changes in EEOC leadership. The EEOC presently lacks a General Counsel, a permanent Chair and, notably, no new Regional Attorneys have been named since President Trump took office on January 20, 2017.
    • Addressing Emerging And Developing Issues - In addition, Part I breaks down the EEOC's new mission to monitor trends and developments in the law, workplace practices, and labor force demographics in order to identify emerging and developing issues that can be addressed through its enforcement program. The 2017 SEP identifies five emerging and developing issues as strategic priorities:

      1. Qualification standards and inflexible leave policies that discriminate against individuals with disabilities;
      2. Accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act (PDA);
      3. Protecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex;
      4. Clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy; and
      5. Addressing discriminatory practices against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, arising from backlash against them from tragic events in the United States and abroad.
  • Part II of this book addresses the various stages of an EEOC litigation. This section tracks the notable developments in FY 2017 as they relate to each stage of an EEOC enforcement action – starting with the filing of the charge of discrimination and continuing all the way through settlement or a decision on the merits.
  • Part III of this book contains summaries of all the significant decisions arising from EEOC litigation in 2017. The decisions are categorized by subject matter to allow for easy navigation to the topic of interest.

Given the new political landscape and potential changes to the EEOC's enforcement agenda, it is more important now than ever for employers to keep abreast of the EEOC's priorities and trends. Seyfarth's EEOC-Initiated Litigation report contains a detailed legislative update, case studies and variety of charts, graphs, and maps tracking key EEOC case categories and historical data. You can learn more about the report at Seyfarth's Workplace Class Action Blog and the complete edition is once again available for order as an eBook here.

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