United States: Annual Report On EEOC Developments - Fiscal Year 2012

INTRODUCTION

Over the years, Littler has provided periodic reports on significant cases, regulatory developments and other activities involving the Equal Employment Opportunity Commission (EEOC or "the Commission"). While such guidance is intended to update employers on significant EEOC developments as they arise, we believe that employers can also benefit from an annual update and overview of key EEOC developments. This Annual Report on EEOC Developments – Fiscal Year 2012 (hereafter "Report"), our second annual report, is designed as a comprehensive guide to significant EEOC developments over the past fiscal year.

A substantial portion of this year's Report focuses on the EEOC's systemic initiative. On February 22, 2012, the EEOC issued its Strategic Plan for Fiscal Years 2012-2016, which underscores that over the next several years a significant emphasis will be placed on systemic investigations and related litigation. The EEOC has defined 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." The EEOC provided more specific details concerning the areas it will focus on in its Strategic Enforcement Plan, which was approved by the Commission on December 17, 2012.

Part One of the Report provides an overview of EEOC charge activity, litigation and settlements over the past year, including highlighting the types and location of lawsuits filed by the Commission. As anticipated, there has been a continued focus on systemic and multiple victim investigations and lawsuits filed by the EEOC. Significant settlements also are highlighted. This year we are highlighting settlements reported by the EEOC that exceeded $1 million stemming from conciliation or court settlements. We also have added two new appendices in this year's Report – a list and summary of appellate cases in which the EEOC has been involved as the appellant or as an amicus and a list of select dispositive motions decided on the merits in litigation where the EEOC was a party.

In Part Two, key regulatory developments are reviewed, including the Commission's activities beyond formal regulatory efforts, and areas in which the EEOC plans to devote its attention over the coming year. Aside from discussion of the EEOC's Strategic Plan, as supplemented by the Strategic Enforcement Plan, the Report highlights the Commission's updated Guidance on criminal history and new rules discussing the "reasonable factor other than age" (RFOA) defense under the Age Discrimination in Employment Act (ADEA). References are made to more comprehensive Littler updates and/or reports for in-depth discussion of the topic, as applicable. Anticipated trends also are discussed.

Part Three reviews EEOC investigations, particularly as part of the Commission's systemic initiative, and the basis for the EEOC's broad based authority. The Report summarizes recent administrative subpoena enforcement actions at the district court level and decisions by the appellate courts. Issues addressed include EEOC requests for information involving: (1) broad geographic coverage and (2) confidential information. Other noteworthy developments discussed include EEOC efforts to communicate ex parte with former managers, burdensomeness challenges, and jurisdictional disputes. Appendix D to this report also includes a list and summary of all subpoena enforcement actions initiated by the Commission over the past year.

Part Four highlights key court cases, again focusing primarily on systemic and class-type cases, and addresses a number of topics, including: (1) pleading deficiencies raised by employers and recent EEOC attacks on employer responses to complaints; (2) unreasonable delay and use of the laches defense; (3) statutes of limitations cases involving both pattern or practice claims and other types of cases; (4) employer challenges based on the EEOC's alleged failure to meet its conciliation obligations prior to filing suit; (5) intervention-related issues; (6) class discovery and general discovery issues in EEOC litigation, as filed by employers and the EEOC; (7) favorable and unfavorable summary judgment rulings and lessons learned; and (8) trial related issues.

We are hopeful that this Report serves as a useful resource for employers in their EEOC compliance activities and provides helpful guidance when faced with litigation involving the EEOC.

I. OVERVIEW OF EEOC CHARGE ACTIVITY, LITIGATION AND SETTLEMENTS

A. Review of Charge Activity, Backlog and Benefits Provided

On November 19, 2012, the EEOC announced the publication of the FY 2012 Performance and Accountability Report (referenced herein as the "EEOC 2012 Annual Report").1 As discussed in its 2012 Annual Report, during FY 2012 the Commission again received nearly 100,000 charges, with the past three years involving a record number of charges in the Commission's 47-year history.2 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:3

The Commission reported a "significant reduction" in its inventory of charges, its "backlog," having reduced its inventory from 78,136 charges to 70,312 charges. The Commission also resolved a total of 111,139 charges in FY 2012, thus resolving more charges than those filed at the agency during the past fiscal year.

B. Continued Focus on Systemic Investigations and Litigation

In March 2006, as part of the EEOC's Systemic Task Force Report, the Commission 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 Commission clearly has been committed to expanding this initiative since 2006. The EEOC's Systemic Task Force defined 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."

The EEOC's 2012 Annual Report focuses in many respects on the Commission's new Strategic Plan for Fiscal Years 2012 through 2016, approved by the Commission on February 22, 2012, which "reiterated the importance of [the] systemic enforcement program as a top agency priority."4 The EEOC 2012 Annual Report outlines the resources devoted to strengthening the systemic program, including:

  • Leveraging technology to facilitate cross-district communication and sharing of information and data, including: (1) the use of a "Systemic Portal" – an internal EEOC systemic website and (2) the development of a Systemic Watch List, which draws from the EEOC's Integrated Management System (IMS) that tracks private sector charges and litigation with details on the applicable company and a wide range of other related data;
  • Conducting advanced systemic training for more than 25 percent of its field attorneys;
  • Deploying experts in the fields of statistics, industrial technology and labor market economics within headquarters and throughout the field;
  • Expanding usage of the CaseWorks system, which provides a central shared source of litigation support tools that facilitate the collection and review of electronic discovery in order to support greater collaboration in development of cases for litigation; and
  • Providing a litigation advisory team tasked with providing legal advice, developing litigation strategies, and providing hands on support in systemic lawsuits.5

C. Systemic Investigations – Comparison Between FY 2011 and FY 2012

A review of the Commission's Annual Reports in FY's 2011 and 2012 demonstrates that although there was a slight increase in the number of systemic investigations, there was a dramatic increase in terms of results achieved:6

The Commission underscored the impact of its systemic initiative during FY 2012, explaining, "The $36 million recovered in systemic resolutions this year is four times the amount recovered in FY 2011."9 While not mentioned in the EEOC 2012 Annual Report, a "reasonable cause" finding was reached in nearly 40% of the systemic investigations in FY 2011, compared to a "reasonable cause" finding typically being made in less than 5% of all EEOC charges.10 The Commission also commented that "there was a focus on promoting coordination of field activities to ensure that investigations across districts that involve common issues are handled collaboratively, bringing greater efficiencies and reinforcing the national enforcement agency model."11 The Commission pointed to the "strong collaboration between the enforcement and legal staff in all aspects of systemic work."12 The EEOC also has been strategic based on the number of actual lawsuits filed, compared to the number of charges in which there was a "reasonable cause" finding.

It should be noted that there was a decrease in the number of Commissioner charges issued between FY 2011 and FY 2012 – 47 Commissioner charges were filed in FY 2011 compared to 12 new Commissioner charges in FY 2012.

As discussed elsewhere in this Report, in the section devoted to subpoena enforcement activities, the Commission has continued to seek assistance from the courts during the course of various investigations, particularly systemic investigations. For FY 2012, the Commission referred to having filed 33 "subpoena enforcement and other actions." This was a decrease from FY 2011 in which 39 "subpoena enforcement and other actions" were filed.13 The decrease may stem, in part, from the EEOC's known "track record" in frequently prevailing when filing subpoena enforcement actions.

In support of its strategic initiative, the Commission reports that there was more interagency coordination. Particularly noteworthy are cross-agency efforts involving equal pay and the EEOC's role on the National Equal Pay Enforcement Task Force. As an example, in FY 2012, the Commission trained 1,492 enforcement personnel from federal, state and local agencies on "techniques for investigating and analyzing

violations of compensation discrimination laws."14 The EEOC also reportedly conducted over 70 joint outreach events with the Task Force member agencies, including the OFCCP. The Commission referred to having signed a Memorandum of Understanding with the OFCCP in November 2011 to streamline information sharing and improving coordination.15

D. EEOC Litigation and Systemic Initiative

For FY 2012, consistent with the EEOC's current focus on "strategic law enforcement," the Commission filed the fewest number of "merits" lawsuits in recent memory, having filed only 122 lawsuits, which included 86 individual suits, 26 multiple "victim" suits (i.e., fewer than 20 alleged "victims") and 10 systemic suits (i.e., 20 or more reported "victims").16 There has been a steady decrease in the number of merits lawsuits since FY 2005 – a total of 381 suits were filed in that year.17 There even has been a dramatic decrease over the past year – 261 merits lawsuits were filed in FY 2011 compared to the 122 merits suits filed in FY 2012 – a decrease of over 50%.

Particularly noteworthy is that a vast majority of the EEOC's lawsuits are filed during the last two months of the EEOC's fiscal year. As an example, between August 1, 2012 and September 30, 2012, the EEOC filed 69 lawsuits, which was 56.5% of the lawsuits filed during the entire fiscal year.19 Similarly, during FY 2011, among the 261 lawsuit filed, 185 suits (70.8%) were filed during the last two months of the fiscal year.

In reviewing all new court filings, the EEOC lawsuits included 66 Title VII claims, 45 Americans with Disabilities Act (ADA) claims, 12 Age Discrimination in Employment Act (ADEA) claims and two Equal Pay Act (EPA) claims.20 Based on a review of reported filings by the EEOC and Littler's tracking of all EEOC filed lawsuits, a more detailed breakdown indicates the following:

The top ten states for EEOC lawsuits filed over the past fiscal year are as follows:21

With respect to the Commission's efforts on behalf of "multiple victims" and its systemic initiative, the EEOC's Annual Report reported on lawsuits pending in courts as follows:

  • 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.22
  • In FY 2012, the Commission filed 12 systemic lawsuits.
  • The Commission resolved 254 merits lawsuits during FY 2012 and recovered $44.2 million, which included 162 Title VII claims, 72 ADA claims, 30 ADEA claims and two EPA claims.23

Based on the EEOC's new Strategic Plan, a central thrust is "combat[ing] employment discrimination through strategic law enforcement."24 A key performance measure has been establishing a "baseline" focusing on the proportion of systemic cases on the active docket as of September 30, 2012 and projecting future annual targets against the baseline. For FY 2012, the Commission established a "baseline" of 20% and "[b]y FY 2016, the agency projects that 22-24 percent of cases on its active litigation docket will be systemic cases."25

E. Mediation Efforts

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."26 The Commission reported that for FY 2012, the EEOC's private sector mediation program "secured a total of 8,714 mediated resolutions out of a total of 11,380 conducted."27 This was a slight decrease from FY 2011 in which there was a total of 9,831 resolutions.28 The Commission referred to obtaining more than $153.2 million in monetary benefits, which was somewhat less than the $170 million obtained through the mediation program during FY 2011.29

The Commission 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 2012, the EEOC had a cumulative multi-year total of 2,140 UAMs, which the Commission referred to as a 7.1 percent increase from FY 2011.

F. Significant EEOC Settlements

There were a sizeable number of multi-million dollar settlements during both conciliation and litigation over the past year.

Based on private sector administrative enforcement, the EEOC reported $365.4 million in monetary benefits in FY 2012, which was the highest level ever achieved through the administrative process, and $700,000 more than recovered in FY 2011.30

In reviewing settlements of EEOC lawsuits, a total of 254 merits lawsuits were resolved in FY 2012, resulting in $44.2 million in monetary recovery (which was a substantial decrease from the $90.9 million in monetary recovery during FY 2011).31 Broken down by types of discrimination charges, Title VII claims were involved in 162 resolutions; ADA claims in 72; ADEA claims in 30; and EPA claims in two resolutions. With respect to the total amount of recovery by direct and intervention lawsuits, the EEOC recovered $34.3 million in Title VII resolutions; $5.4 million in ADA resolutions; $3.6 million in ADEA resolutions; and $942,000 in resolutions involving more than one statute.32

While the majority of the Commission's litigation remains "single victim" cases, the trend of the Commission's filing and settling of systemic, pattern or practice and class types of claims may assist employers when evaluating corporate policies or practices that may be susceptible to an EEOC challenge. Attached to this Report as Appendix A is a summary of significant EEOC settlements during FY 2012 based on both conciliation and as a result of EEOC litigation.33

G. Appellate Activity By EEOC

Additionally, for the first time in FY 2012, the EEOC published online information related to its appellate activity.34 Based on the EEOC's online information, the Commission filed eight amicus briefs in FY 2012 and was an appellant in 12 cases. The Commission's new repository of appellate activity is an excellent resource to assess the types of cases and issues the Commission is weighing in on as an amicus and pursuing as an appellant.35

H. Dispositive Motions Decided on the Merits and the EEOC

While it is beneficial to know the trends related to the EEOC's filing of lawsuits, it is also helpful to have a sense for how the Commission fares in dispositive motions practice related to the strength of the underlying merits of a suit. To this end, Littler has compiled a list of select court rulings on dispositive, merits-based motions where the EEOC is a party to the litigation, which is available as Appendix C to this Report.

II. UPDATE ON THE COMMISSION , ITS REGULATORY AGENDA , AND RELATED DEVELOPMENTS

A. Update on the Commission

During FY 2012, the EEOC was poised to move forward with a wide variety of policy initiatives. Although the EEOC advanced several planned agenda items, other items remain stalled, likely as a result of the vacancy left by the departure of Commissioner Stuart Ishimaru.

In April 2012, Commissioner Ishimaru resigned early from his position to accept the position of Director of the Office of Minority and Women Inclusion (OMWI) at the Consumer Financial Protection Bureau (CFPB).36 Ishimaru, a Democrat who was nominated by President George W. Bush, had been a member of the EEOC since 2003. His term was not set to expire until July 1, 2012.

Ishimaru's departure changes the political makeup of the Commission. Since his resignation, the EEOC has been operating with only four members: Democrat Jacqueline Berrien as Chair, Democrat Chai Feldblum, Republican Victoria Lipnic, and Republican Constance Barker. Democrats no longer hold a majority, affecting the EEOC's ability to approve policy initiatives supported by President Obama, effectively requiring bipartisan support for any action.

On August 2, 2012, President Obama nominated Jenny R. Yang to fill the vacant Democratic Commissioner seat,37 although the timing of Senate action on her nomination remains uncertain. If the Senate confirms her nomination, Yang will serve as a Commissioner until July 1, 2017. With the reelection of President Obama, a fully seated Commission will remain Democratic – controlled and is expected to pursue an aggressive agenda, including currently stalled initiatives.

B. EEOC Strategic Plan and Related Enforcement Plan

As its first major act of FY 2012, the EEOC set forth its strategy for achieving its fundamental mission to stop and remedy unlawful employment discrimination. On February 22, 2012, the EEOC voted 4-1 in favor of its four-year strategic plan, The Strategic Plan for Fiscal Years 2012 – 2016 ("the Strategic Plan"),38 which outlines the agency's goals and achievement benchmarks for enforcing various antidiscrimination laws under its jurisdiction, as well as its objective to carry out education and outreach efforts. The Strategic Plan places great emphasis on enforcement and the targeting of systemic discrimination.

To accomplish its mission, the EEOC has identified the following three objectives and outcome goals: (1) combating employment discrimination through strategic law enforcement; (2) preventing employment discrimination through education and outreach; and (3) delivering excellent and consistent service through a skilled and diverse workforce and effective systems. To this end, the Strategic Plan identifies strategies for achieving each outcome goal and 14 performance measures for gauging the EEOC's progress.

One of the EEOC's strategies for reducing employment discrimination at the national and local levels includes developing and implementing a Strategic Enforcement Plan (SE P) that: "(1) establishes EEOC priorities and (2) integrates the EEOC's investigation, conciliation and litigation responsibilities in the private and state and local government sectors; adjudicatory and oversight responsibilities in the federal sector; and research, policy development, and education and outreach activities."39

The Strategic Plan also sets forth benchmarks for measuring the EEOC's performance in achieving its strategies. For instance, under the Strategic Plan, the EEOC seeks to ensure that by 2016 a certain percentage of cases in its litigation docket are systemic cases, and that a certain percentage of the agency's administrative and legal resolutions "contain targeted, equitable relief."

On July 18, 2012, the Commission held a public meeting to solicit input as the agency drafted the SEP.40 The EEOC released a draft of the SEP for public comment on September 4, 2012.41 On December 17, 2012, the Commission adopted the final SEP by a vote of 3-1.42

The final SEP was revised from the draft SEP, based on more than 100 comments related to the draft SEP from individuals, organization and coalitions internal and external to the agency and from the across the nation.43 The SEP identifies the following priorities for national enforcement in the private and public sectors: (1) eliminating systemic barriers in recruitment and hiring; (2) protecting immigrant, migrant and other vulnerable workers; (3) addressing emerging and developing issues, such as ADA Amendment Act issues, LGBT (lesbian, gay, bisexual and transgender 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 systemic enforcement and targeted outreach.

To implement these priorities, the EEOC intends to continue prioritizing certain types of charges filed with the agency and to give preference to litigation involving SEP or EEOC District enforcement priority issues. Additionally, the SEP reaffirms the EEOC's focus on pursuing systemic cases – "pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, occupation, business, or geographic area."44 With respect to systemic enforcement, the SEP specifically notes that the EEOC District offices are expected to coordinate with each other so as to avoid duplication and to improve efficiencies through collaboration, consultation and strategic partnerships between the offices. While the EEOC developed the SEP as a strategy for reducing discrimination, the SEP, as a whole, places more emphasis on enforcement and litigation than on prevention efforts and conciliation.

In the SEP, the Commission re-affirmed its delegation of authority to commence or intervene in litigation to the General Counsel in all cases except the following:

  1. Cases involving a major expenditure of resources, e.g., cases involving extensive discovery or numerous expert witnesses and many systemic, pattern or practice or Commissioner's charge cases;
  2. Cases that present issues in a developing area of law where the Commission has not adopted a position through regulation, policy guidance, Commission decision or compliance manuals;
  3. Cases that the General Counsel reasonably believes to be appropriate for submission for Commission consideration because of their likelihood of public controversy or otherwise (e.g., recently modified or adopted Commission policy); and
  4. All recommendations in favor of Commission participation as amicus curiae, which shall continue to be submitted to the Commission for review and approval.45

Moreover, the SEP establishes that at a minimum, one litigation recommendation from each District Office will be presented to the Commission for consideration during each fiscal year.46

The Commission will report on its success related to the Strategic Plan and SEP as part of its FY 2013 Performance and Accountability Report (FY 2013 PAR). The Commission has additionally committed to holding a public meeting 45 days after the release of the FY 2013 PAR, during which time it intends to discuss implementation of the Strategic Plan, including the SEP. For FY 2013, the Commission has established some key deadlines for deliverables required under the SEP as follows:

C. Noteworthy Regulatory Activities

1. Initial Planned Agenda and Significant Anticipated Guidance

The Commission began FY 2012 with an aggressive agenda of anticipated regulatory activity and guidance, which included issuing a final rule addressing disparate impact and reasonable factors other than age under the Age Discrimination in Employment Act (ADEA),47 issuing guidance regarding employers' use of criminal history records and credit history, a renewed focus on guidance regarding leaves of absence and reasonable accommodation under the Americans with Disabilities Act (ADA),48 and updated recordkeeping and data collection requirements. According to the Agency's regulatory agenda for Fall 2011, which was released in January 2012 and was the last publicly released regulatory agenda, the EEOC planned to issue a proposed rule that would update its race and ethnicity data collection method to conform with current reporting instructions for the EEO-1 Report, making employee self-identification the preferred method for collecting race and ethnic data on employees.49 While the Commission was successful in executing most of its agenda items, it did not ultimately issue any guidance on credit history or the reasonable accommodations under the ADA. Further, the EEOC faced a setback in its push to collect pay data when the Paycheck Fairness Act stalled in the Senate.50 That Act would have allowed the EEOC to collect pay data from employers based on race, gender, and national origin. According to a report issued by the National Academy of Science (NAS) on the collection of pay data, any increased efforts by the EEOC or Office of Federal Contract Compliance Programs (OFCCP) to gather detailed compensation information absent a more comprehensive plan for obtaining and measuring such data – as would be required under legislative and regulatory proposals – may increase employer burdens without providing the agency with beneficial statistics.51 The NAS Study concluded that agencies have yet to set forth a strategy for gathering and using the wage data to combat discrimination.

2. Age Discrimination and the "Reasonable Factors Other Than Age" Defense

On March 29, 2012, the EEOC issued its Final Regulation on Disparate Impact and Reasonable Factors Other than Age (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA).52 The Final Rule clarifies that the ADEA prohibits policies and practices that have a disparate impact on older individuals unless the employer can show that the policy or practice is based on a reasonable factor other than age.

The EEOC's stated purpose in revising its rule on RFOA was to align the regulation with the Supreme Court's decisions in Smith v. City of Jackson53 and Meacham v. Knolls Atomic Power Laboratory.54 In these decisions, the Court criticized part of the Commission's existing ADEA regulations, which stated that if an employee establishes that an employment practice disproportionately harmed older workers, the employer had the burden of proving that the practice or policy was required as a "business necessity." The Court did away with the business necessity requirement and instead ruled that employers need only prove that the practice was based on RFOA. While the Court also said that the RFOA defense is easier to prove than the business necessity defense, it did not otherwise explain RFOA.

The Final Rule codifies the RFOA defense for age discrimination claims,55 purports to align the existing EEOC regulations with the Supreme Court's holding that the defense to an ADEA disparate impact claim is a RFOA (not business necessity), and provides further clarification of the RFOA defense.

The Commission's Final Rule confirms that: (1) the plaintiff bears the burden of "isolating and identifying the specific employment practice" that harms older workers substantially more than younger workers;56 and (2) if the plaintiff makes this showing, the employer must demonstrate the RFOA defense.57 The Final Rule explains that to establish the RFOA defense:

An employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.58

To aid in this analysis, the Final Rule includes a non-exhaustive list of considerations employers may use to assess the reasonableness of the factors other than age, including:

  • The extent to which the factor is related to the employer's stated business purpose;
  • The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
  • The extent to which the employer limited supervisors' discretion to assess employees subjectively, particularly when the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
  • The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
  • The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.59

The Final Rule also indicates that in applying these factors, no specific consideration or combination need be present to establish the RFOA defense, nor does the mere presence of one of these factors automatically establish the defense.60

Ultimately, the Final Rule suggests that an employer should be liable for a facially neutral practice if it negligently or unreasonably failed to mitigate its practice's disparate impact.61 Thus, the Final Rule likely will make it more challenging for employers to implement facially neutral employment policies. Although the Commission did make changes to some provisions in the proposed rule that had been of concern to employers, the Final Rule as promulgated still portends increased difficulty for employers defending against disparate impact age discrimination claims.

Based on the new RFOA rules, employers are urged to carefully document personnel decisions that affect older workers, particularly RI Fs, rely on objective factors to the extent practicable, take care in relying upon factors that may have an adverse impact on older workers, and consider training and legal guidance when making such decisions.

3. Criminal History Guidance

On April 25, 2012, the EEOC issued updated guidance concerning the use of criminal records by employers, titled "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964"62 (Updated Guidance). The Updated Guidance follows the EEOC's January 2012 announcement of a $3.1 million dollar settlement with an employer following the Commission's finding that the employer allegedly screened out more than 300 African American job applicants based upon their criminal records.63 The EEOC's Updated Guidance is intended to update and consolidate all of the Commission's prior statements about the use of criminal records in employment decisions into one comprehensive document and build upon previously issued court decisions and guidance. The guidance "also updates relevant data" and "illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee."64

The Updated Guidance addresses both disparate treatment and disparate impact claims, and reviews the EEOC's approach regarding employer policies involving the use of both arrest and conviction records. The Commission's approach to disparate treatment has remained consistent. It also has maintained its position that while an employer may take into consideration an arrest in making an employment decision, excluding an applicant solely based upon an arrest cannot be justified by business necessity. A central focus of the Updated Guidance involves the potential adverse impact on African Americans and Hispanics based on their exclusion from employment based on criminal conviction records. An employer may be able to support an exclusion based on business necessity, if the employer "develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three Green factors), and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity."65 The Updated Guidance further provides that an employer may be able to exclude an individual solely on the basis of the "three Green factors," without doing an individualized assessment in limited circumstance where the screen is "narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question."

These developments set the stage for employers to closely review their hiring policies relating to the consideration of criminal records, assessing potential Title VII risk and opportunities to meaningfully reduce that risk without compromising other legitimate and compelling business interests. In particular, the Updated Guidance remains problematic for many employers, concerning the manner in which time bars may be considered based on certain offenses and the burden imposed on employers in demonstrating that the factors considered are job-related. Unless further clarification is provided by the Commission, the impact of the Updated Guidance may ultimately be decided by the courts.

4. Recordkeeping Regulations

The EEOC amended its Title VII and ADA recordkeeping regulations to address recordkeeping obligations under the Genetic Information Nondiscrimination Act (GIN A).66 The final rule became effective on April 3, 2012.

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Footnotes

1 The EEOC refers to the FY 2012 Performance and Accountability Report as the "PAR" for FY 2012 (herein cited as "EEOC 2012 Annual Report"). EEOC, FISCAL YEAR 2012 PERFORMANCE AND ACCOUNTABILITY REPORT (Nov. 19, 2012), available at http://www.eeoc.gov/eeoc/plan/index.cfm; see also Press Release, EEOC, EEOC Releases Performance and Accountability Report Under New Strategic Plan (Nov. 19, 2012), available at http://www.eeoc.gov/eeoc/newsroom/release/11-19-12.cfm. See also Ilyse Schuman, EEOC Actions Resulted in Record Amount of Monetary Benefits Awarded to Private Sector Claimants, According to FY 2012 Performance and Accountability Report, Littler Washington D.C. Employment Law Update (Nov. 26, 2012), http://www.dcemploymentlawupdate.com/2012/11/articles/eeoc-1/eeoc-actions-resulted-in-record-amount-of-monetary-benefits-awarded-to-private-sector-claimants-according-to-fy-2012-performance-and-accountability-report/. In this section of the Report, data from the EEOC's 2012 FY Annual Report is compared to the EEOC's 2011 FY Annual Report (herein cited as "EEOC 2011 Annual Report"). EEOC, FISCAL YEAR 2011 PERFORMANCE AND ACCOUNTABILITY REPORT (Nov. 15, 2011), available at http://www.eeoc.gov/eeoc/plan/2011par.cfm.

2 The EEOC's FY 2012 commenced on October 1, 2011 and ended on September 30, 2012.

3 See EEOC 2012 Annual Report at 25.

4 EEOC 2012 Annual Report at 28.

5 Id.

6 EEOC 2012 Annual Report at 28; see also EEOC 2011 Annual Report at 19-20.

7 At the end of FY 2011, the Commission reported that it was working on 580 systemic investigations. EEOC 2011 Annual Report at 19. Similar statistics were not included in the EEOC 2012 Annual Report.

8 According to the EEOC's 2012 Annual Report, the settlements for FY 2012 involved 46 successful conciliations of investigations and pre-determination settlements in 19 systemic investigations. EEOC 2012 Annual Report at 28.

9 EEOC 2012 Annual Report at 28.

10 See EEOC, All Statutes FY 1997 – FY 2011, http://eeoc.gov/eeoc/statistics/enforcement/all.cfm (last visited Dec. 7, 2012). See also EEOC 2011 Annual Report at 19-20.

11 EEOC 2012 Annual Report at 28.

12 Id.

13 EEOC 2011 Annual Report at 19.

14 EEOC 2012 Annual Report at 32.

15 Id.

16 EEOC 2012 Annual Report at 27.

17 See EEOC, All Statutes FY 1997 – FY 2011, http://eeoc.gov/eeoc/statistics/enforcement/all.cfm (last visited Dec. 7, 2012).

18 The EEOC has defined "merits" suits as direct lawsuits or by intervention involving alleged violations of the substantive provisions of the statutes enforced by the EEOC as well as enforcement of administrative settlements. See id.

19 Littler monitored EEOC court filings over the past fiscal year, and the information reported on the Commission's timing for filing its lawsuits in FY 2012 is based on Littler's monitoring efforts.

20 EEOC 2012 Annual Report at 27.

21 Littler monitored EEOC court filings over the past fiscal year, and the state-by-state breakdown of lawsuits filed as well as the table summarizing the types of claims filed are based upon a review of federal court filings in the United States. The EEOC does not make publicly available its data showing the breakdown of lawsuits filed on a state by state basis, although charge activity on a state-by-state basis has been available from the Commission's website since May 2012. See EEOC, FY 2009 – 2011 EEOC Charge Receipts by State (includes U.S. Territories) and Basis, http://www1.eeoc.gov/eeoc/statistics/enforcement/charges_by_state.cfm (last visited Dec. 7, 2012).

22 EEOC 2012 Annual Report at 27.

23 Id.

24 EEOC 2012 Annual Report at 2.

25 EEOC 2012 Annual Report at 13.

26 EEOC 2012 Annual Report at 26.

27 Id.

28 See EEOC 2011 Annual Report at 18.

29 EEOC 2012 Annual Report at 26.

30 EEOC 2012 Annual Report at 3.

31 See EEOC 2012 Annual Report at 27; see also EEOC 2011 Annual Report at 19.

32 EEOC 2012 Annual Report at 27.

33 The summary of settlements is based on both settlements reported in the EEOC 2012 Annual Report at pages 28-31 and Littler monitoring of EEOC press releases announcing settlements during FY 2012. The significant settlements as summarized in Appendix A, include settlements over $1 million and they are organized by settlement amount. The summary also identifies whether the settlement occurred the administrative process, such as through conciliation, or based upon a consent decree after a lawsuit was filed by the Commission.

34 Press Release, EEOC, EEOC Appellate Briefs Now Online (June 20, 2012), available at http://www.eeoc.gov/eeoc/newsroom/release/6-20-12b.cfm.

35 For a detailed analysis of the issues involved in appellate cases where the EEOC was the appellant or participated in an appeal as an amicus, please see Appendix B to this Report.

36 Press Release, EEOC, Stuart J. Ishimaru to Resign from Commission (Apr. 11, 2012), available at http://www.eeoc.gov/eeoc/newsroom/release/4-11-12.cfm.

37 I lyse Schuman, Obama Nominates Jenny Yang to be New EEOC Member, Littler Washington D.C. Employment Law Update (Aug. 6, 2012), http://www.dcemploymentlawupdate.com/2012/08/articles/eeoc-1/obama-nominates-jenny-yang-to-be-new-eeoc-member/.

38 EEOC, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION STRATEGIC PLAN FOR FISCAL YEARS 2012 – 2016 (2012), available at http://www.eeoc.gov/eeoc/plan/strategic_plan_12to16.cfm.

39 EEOC, UNITED STATES EQUAL EMPLOYMENT OPPORTUNI TY COMMISSION STRATEGIC PLAN FOR FISCAL YEARS 2012 – 2016 (2012), available at http://www.eeoc.gov/eeoc/plan/strategic_plan_12to16.cfm. A summary of other strategies is discussed in the Littler D.C. Update at Ilyse Schuman, EEOC Approves Strategic Plan for FY 2012-2016, Littler Washington D.C. Employment Law Update (Feb. 24, 2012), http://www.dcemploymentlawupdate.com/2012/02/articles/eeoc-1/eeoc-approves-strategic-plan-for-fy-20122016/.

40 A comprehensive summary and discussion of the hearing is included in Littler's ASAP, Barry A. Hartstein, EEOC Seeks Input on Developing Strategic Enforcement Plan, Littler ASAP (July 19, 2012), available at http://www.littler.com/publication-press/publication/eeoc-seeks-input-developing-strategic-enforcement-plan.

41 EEOC, DRAFT FOR PUBLIC RE LEASE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION STRATEGIC ENFORCEMENT PLAN (Sept. 4, 2012), available at http://www.eeoc.gov/eeoc/plan/sep_public_draft.cfm.

42 Press Release, EEOC, EEOC Approves Strategic Enforcement Plan (Dec. 18, 2012), available at http://www.eeoc.gov/eeoc/newsroom/release/12-18-12a.cfm.

43 EEOC, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION STRATEGIC ENFORCEMENT PLAN FY 2013-2016, p. 5 (Dec. 17, 2012), available at http://www.eeoc.gov/eeoc/plan/sep.cfm. By way of example, the September 2012 draft SEP did not highlight enforcing equal pay laws as one of the national priority items.

44 A summary of the SEP is discussed further in the Littler D.C. Update at Barry Hartstein, EEOC Seeks Feedback on Draft Strategic Enforcement Plan, Littler Washington D.C. Employment Law Update (Sept. 6, 2012), http://www.dcemploymentlawupdate.com/2012/09/articles/eeoc-1/eeoc-seeks-feedback-on-draft-strategic-enforcement-plan/.

45 Id. at 20-21.

46 Id. at 21.

47 Abstracts of proposed federal rules and scheduled timetables are available on Reginfo.gov, published by the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), General Services Administration (GSA), and Regulatory Information Service Center (RISC). The RFOA abstract is available at http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201110&RIN=3046-AA76.

48 Press Release, EEOC, EEOC Commissioners to Explain Disability Discrimination Law in Coast-To-Coast Tour (Aug. 28, 2012), available at http://www.eeoc.gov/eeoc/newsroom/release/8-28-12.cfm; Press Release, EEOC, Next Commission Meeting Wednesday, April 25 (Apr. 19, 2012), available at http://www.eeoc.gov/eeoc/newsroom/release/4-19-12.cfm.

49 See Agency Rule List Fall 2011, Equal Employment Opportunity Commission, http://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST&currentPub=true&agencyCode=&showStage=active&agencyCd=3046&Image58.x=25&Image58.y=13 (last accessed Dec. 7, 2012).

50 S . 3220, 112th Cong. (2012). A summary of the Paycheck Fairness Act is discussed in the Littler D.C. Update at Ilyse Schuman, Paycheck Fairness Act Stalls in Senate, Littler Washington D.C. Employment Law Update (June 5, 2012), http://www.dcemploymentlawupdate.com/2012/06/articles/discrimination-in-the-workplac/paycheck-fairness-act-stalls-in-senate/.

51 National Research Council, (2012), Collecting Compensation Data from Employers, Panel on Measuring and Collecting Pay Information from U.S. Employers by Gender, Race, and National Origin. Committee on National Statistics, Division of Behavioral and Social Sciences and Education. Washington, DC: The National Academic Press, available at http://www.nap.edu/catalog.php?record_id=13496. A summary of the report is also discussed in the Littler D.C. Update at Ilyse Schuman, Report Finds Agency Plans for Compensation Data Collection Lacking, Littler Washington D.C. Employment Law Update (Sept. 5, 2012), http://www.dcemploymentlawupdate.com/2012/09/articles/eeoc-1/report-finds-agency-plans-for-compensation-data-collection-lacking/.

52 I lyse Schuman, EEOC Issues Final Rule on Reasonable Factors Other Than Age Defense in Disparate Impact Age Discrimination Cases, Littler Washington D.C. Employment Law Update (Mar. 30, 2012), http://www.dcemploymentlawupdate.com/2012/03/articles/agency-rulemaking/eeoc-issues-final-rule-on-reasonable-factors-other-than-age-defense-in-disparate-impact-age-discrimination-cases/.

53 544 U.S. 228 (2005).

54 554 U.S. 84 (2008).

55 29 C.F.R. § 1625.7.

56 29 C.F.R. § 1625.7(c).

57 29 C.F.R. § 1625.7(d).

58 29 C.F.R. § 1625.7(e)(1).

59 29 C.F.R. § 1625.7(e)(2).

60 29 C.F.R. § 1625.7(3).

61 E dward Ellis and Amy Wentz, The EEOC Misses the Mark with New Rule on the ADEA's Reasonable Factors Other Than Age Defense, Littler ASAP (Apr. 4, 2012), http://www.littler.com/publication-press/publication/eeoc-misses-mark-new-rule-adeas-reasonable-factors-other-age-defense.

62 EEOC, ENFORCEMENT GUIDANCE ON THE CONSIDERATION OF ARREST AND CRIMINAL CONVICTION RECORDS IN EMPLOYMENT DECISIONS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED. 42 U.S.C. § 2000E ET SE Q., Section II (Apr. 25, 2012), available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

63 A comprehensive summary and discussion of the final rule is included in Barry Hartstein, Rod Fliegel, Marcy McGovern, and Jennifer Mora, Criminal Background Checks: Evolution of the EEOC's Updated Guidance and Implications for the Employer Community, Littler Report (May 17, 2012), available at http://www.littler.com/publication-press/publication/criminal-background-checks-evolution-eeocs-updated-guidance-and-implic. See also Ilyse Schuman, EEOC Approves Enforcement Guidance on the Use of Criminal Records in Employment, Littler Washington D.C. Employment Law Update (Apr. 26, 2012), http://www.dcemploymentlawupdate.com/2012/04/articles/eeoc-1/eeoc-approves-enforcement-guidance-on-the-use-of-criminal-records-in-employment/, and Rod Fliegel, Barry Hartstein, and Jennifer Mora, EEOC Issues Updated Criminal Record Guidance that Highlights Important Strategic and Practical Considerations for Employers, Littler ASAP (Apr. 30, 2012), available at http://www.littler.com/publication-press/publication/eeoc-issues-updated-criminal-record-guidance-highlights-important-stra.

64 EEOC, ENFORCEMENT GUIDANCE ON THE CONSIDERATION OF ARREST AND CRIMINAL CONVICTION RECORDS , Section II (Apr. 25, 2012), available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

65 EEOC, ENFORCEMENT GUIDANCE ON THE CONSIDERATION OF ARREST AND CRIMINAL CONVICTION RECORDS , Section I (Apr. 25, 2012), citing Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8th Cir. 1975), available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

66 29 C.F.R. § 1602. By way of background, the EEOC issued final regulations implementing the employment provisions of GIN A in November 2010. A comprehensive summary is included in Ilyse Schuman, EEOC Issues Long-Awaited Final Regulations on the Genetic Information Nondiscrimination Act, Littler ASAP (Nov. 11, 2010), available at http://www.littler.com/publication-press/publication/eeoc-issues-long-awaited-final-regulations-genetic-information-nondisc.

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