United States: Groundhog Day In September – Another Repeat Of The EEOC Fiscal Year-End Lawsuit Filing Frenzy

As the clock ticked down on the EEOC's fiscal year (which ended on September 30), we are struck once again by the eerily consistent trend in the agency's federal court filing trends. Employers around the country are seemingly trapped in the "Groundhog's-day-like" loop that occurs each September. FY2015 was a blockbuster year in major EEOC-litigation decisions from the U.S. Supreme Court on down, leaving many areas of the law in flux. But one thing has remained constant: as we have reported for several years (see here, here, and here), the EEOC has once again rushed to file a blitz of federal court complaints just under the fiscal year wire.

Although we expect some additional filings will continue to filter in overnight, as the courts on the West Coast closed for the day, the raw numbers show that the EEOC filed 157 lawsuits in FY2015 (up from the 145 filed in FY2014). But most significantly, in the last 48 hours of its fiscal year alone, the EEOC launched 27 cases from coast to coast. Indeed, as the following graph depicts, the EEOC filed more complaints in the last quarter of FY2015 than the entire rest of the year put together.

Where Was The EEOC's Subject Matter Focus In FY2015?

We have once again crunched the numbers underlying the EEOC's FY2015 filings to tease out where the EEOC is focusing its substantive enforcement efforts. We have analyzed the EEOC's FY2015 filings according to the statutes pursued and the theories of discrimination that it has alleged. The following two charts show our breakdown of the EEOC's filings in FY2015 by statute, and then a further breakdown of Title VII cases by discrimination theory.

We continue to see the same focus on sex/pregnancy discrimination and disability discrimination that we have seen in prior years. This year sex/pregnancy discrimination cases made up 54% of all Title VII filings, roughly on par with the 55% in FY2014. ADA cases made up 36% of all EEOC filings, which is also fairly consistent with previous years. (Disability cases made up 32% of all EEOC filings in FY2014, and 36% in FY2013.)

Suits alleging discrimination on the basis of race, however, are back on the upswing. Race discrimination cases were somewhat underrepresented last year as compared to earlier years. There were 15 race discrimination cases launched in FY2014, as compared with 17 in FY2013. This year, there were 24 lawsuits filed alleging race discrimination, which amounts to 26% of all Title VII filings.

Our analysis of the filings also confirms yet again that the likelihood of being tagged by the EEOC is not unlike the real estate market — it is all about location, location, location. Certain district offices emerge from the pack both in terms of the sheer number of case filings and the aggressiveness with which they pursue those cases. Here is this year's breakdown by district office.

As with prior years, the Chicago office, led by regional attorney John Hendrickson, is on top with 26 filings in FY2015, the same number that it filed in FY2014. The Philadelphia and Phoenix offices also continued their historical trend of filing a large number of cases. Those offices racked up 18 and 16 filings in FY 2015, respectively, as compared to the 17 and 14 from FY2014. The Indianapolis and Charlotte offices rounded out the top five with 13 filings each. Last year, we noted that the New York office had a new regional attorney appointed in May 2014, and we wondered whether he would continue that office's tradition of aggressive enforcement. If FY2015 is any indication, we now know the answer: the New York office was quite active in FY2015, filing 10 cases – two more than it filed in FY2014. The office earning the "biggest mover" honors is Los Angeles, jumping over 400% from only two cases in FY2014 to nine in FY2015 – still modest in comparison to some of the perennially active offices, but a trend to watch for our West Coast readers.

Old Questions Answered; New Questions Raised

We are now entering the final years of the EEOC's 2012 Strategic Enforcement Plan ("SEP") The SEP was issued by the EEOC in 2012 as the blueprint to guide its enforcement initiatives from 2012 through 2016. We closely followed the SEP through its stages of development, and, to a large extent, have relied on it as the lens through which we view trends and developments in the EEOC's litigation activity. (See, e.g., here, here, here, and here.)

Over the past few years, we have seen how the EEOC's enforcement activity has progressed and taken shape under the influence of the SEP. From the beginning, it was clear that the EEOC was making the prosecution of systemic cases a key priority. We have watched as the EEOC has continued to expend considerable resources litigating high-level, pattern or practice, policy, and class cases. And we have seen that with that increased focus on systemic cases has come an increased focus on the procedural mechanisms that the EEOC relies on to prosecute those cases – and that employers use to defend against them. In our view, FY2015 was a watershed year for determining the future direction of EEOC systemic cases. The Supreme Court has decided some key procedural and substantive issues underpinning the EEOC's strategic initiatives of the past few years. And the EEOC has weighed in with its own guidance and interpretations concerning its own powers and the scope of Title VII and other anti-discrimination statutes.

To be sure, those developments have answered many of the open questions of the past few years. But even as those questions were answered, more questions arose to take their place. Here are just a few:

  • On April 29, 2015, the Supreme Court issued its long-awaited decision in Mach Mining, LLC v. EEOC, in which it considered whether the EEOC gets to operate beyond judicial review during its pre-suit conciliation phase. (In a word: "No!") But that has only opened the door to many new questions about how the lower federal courts will apply that decision to decide employers' challenges to the EEOC's conciliation process. FY2016 will be a defining year in that respect.
  • Similarly, the Supreme Court unanimously rejected the EEOC's pregnancy discrimination guidance in Young v. United Parcel Service, leaving employers to wonder how that guidance applies to their workplace and their employees.
  • The EEOC's boundary-pushing theory of transgender discrimination – which we saw the first glimmers of at the very end of FY2014 – has become a full-blown trend. This rapidly solidifying theory of discrimination was aggressively pursued in FY2015, and we have every reason to expect that it will continue to develop in FY2016 and beyond.
  • The EEOC has repeatedly stated its intention to continue to litigate background check cases despite its initial string of embarrassing losses on this issue. FY2015 saw the EEOC gain ground in this area. Employers will need to wait to see whether those wins embolden the agency to pursue more of those types of cases in FY2016.
  • In a widely reported decision last year, the EEOC unsuccessfully tried to stop a company's health and wellness plan in its tracks. That litigation position resulted in torrents of withering criticism from Congress and others. On April 16, 2015, the EEOC published a Notice of Proposed Rulemaking to clarify its position. But employers are still left scratching their heads because those proposed regulations appear to conflict with the implementing regulations of the Affordable Care Act.

Insight & Implications For Employers?

The fact that we are asking these questions – and not others – is a direct result of how the EEOC has interpreted and pursued the enforcement objectives that it identified for itself in the 2012 Strategic Enforcement Plan. We have seen how the SEP has guided and shaped the EEOC's enforcement initiatives, from an increased focus on systemic litigation, to the pursuit of boundary-pushing theories of discrimination. FY2016 is the last year covered by the 2012 SEP. Now that we are entering the final year, we are starting to see clearly how those enforcement priorities have materialized into actual litigation, and what they have meant in terms of the types of case that are filed and the industries affected. Those choices, in turn, have established new precedent, both in terms of the procedural aspects of EEOC-initiated litigation, and the substance, that will have a lasting effect for years to come.

This fiscal year has just ended. As we do every year, we will continue to analyze the data and filings from FY2015 to see what else we can learn about the EEOC's priorities, and what employers should watch out for in FY2016 and beyond. Seyfarth Shaw LLP will publish that detailed analysis in a book at the end of the calendar year. We hope that you are looking forward to that publication as much as we are, and that you continue to find it a useful reference and guide to developments in EEOC litigation. Please stay tuned, loyal blog readers!

Readers can also find this post on our EEOC Countdown blog 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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Gerald L. Maatman Jr.
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.