United States: Bullseye On Big Business: EEOC's 2016 Performance And Accountability Report Shows Target On Systemic Litigation

Seyfarth Synopsis: The EEOC recently released its annual Performance and Accountability Report for the fiscal year 2016, a must-read for employers regarding statistical data on EEOC litigation. Continuing a trend from recent years, the EEOC has reaffirmed its commitment to targeting companies in high-profile systemic litigation, albeit with uninspiring results.

On November 16, 2016, the EEOC released its annual 2016 Performance and Accountability Report ("PAR") (the Report is here). The PAR highlights the progress of the EEOC's continued efforts to meet the performance goals that are articulated in its 2012 Strategic Enforcement Plan ("SEP"), including its systemic litigation initiative. As the saying goes, the numbers speak volumes.

The PAR functions as a statistical "scorecard" for the EEOC. It provides a report on its activities during the past fiscal year, from October 1, 2015 through September 30, 2016, including its progress toward meeting the goals outlined in the SEP. While the PAR typically provides a preview of what we can expect to see from the EEOC in the upcoming months, this year's edition notably avoids speculating as to the future of the EEOC under a new President.

The EEOC's Overall Results

The EEOC reports that it increased the number of charges resolved to 97,443 charges, up 6.5% from the 91,503 last year. In FY 2014 and FY 2015, the EEOC received 88,778 and 89,385 charges respectively, so the number of charges filed is up slightly over past years.

One of the major goals the EEOC identified in its 2012 SEP was to increase its efforts to champion bigger, more media-focused "systemic" cases, including pattern or practice cases where the alleged discrimination "has a broad impact on an industry, occupation, business, or geographic area." In the SEP, the EEOC set forth a goal to ensure that systemic cases make up at least 20% of its annual litigation docket and at least 22% to 24% of its litigation docket by 2016. (Read more here.) In FY 2016, the EEOC asserts it "meets or exceeded" five of the seven measures outlined in the SEP, while it "partially met" the other two.

The EEOC noted that it filed 18 systemic lawsuits in FY 2016, which represents a slight increase from 17 in 2014 and 16 in 2015. Nevertheless, the number of pending systemic cases declined slightly, with 47 cases on its litigation docket (versus 54 in FY 2013, 57 in FY 2014, and 48 in FY 2015). Finally, the EEOC reports it recovered approximately $38 million in relief for victims of systemic discrimination (down from $40 million in FY 2015, but up from $13 million in FY 2014).

Charges: Breezin' Through The Backlog

The EEOC reduced the charge workload by 3.8% to 73,508, a 3,100 charge reduction compared with FY 2015. As of the end of FY 2015, the EEOC had a backlog of 76,408 charges, which was an increase of 750 charges over the backlog at the conclusion of FY 2014. The EEOC also noted that it responded to over 585,000 calls to its toll-free number and more than 160,000 inquiries to field offices.

The EEOC resolved over 15,800 discrimination charges through the agency's administrative processes – comprised of settlements, mediations, and conciliations. This included 273 resolutions of systemic investigations, obtaining more than $20.3 million in remedies. The agency's mediation program achieved a success rate of over 76%. Regarding conciliation, the EEOC notes that its success rate has remained at 44% over the past two fiscal years.

Settlements: Slowing Down

The EEOC secured more than $482.1 million in total relief in FY 2016. For victims of discrimination in private, state and local government, and federal workplaces, the EEOC obtained $347.9 million through mediation, conciliation, and settlements, again a slight decrease from the $356.6 million it collected in FY 2015 (but an increase from the $296.1 million that it collected in FY 2014). Litigation recoveries also decreased, as the EEOC recovered $65.3 million in FY 2015 while recovering only $52.2 million in 2016.

Lawsuits: Less Litigation

The number of lawsuits filed by the EEOC took a sharp decline, dropping from 142 merits lawsuits (including 100 individual suits, and 42 suits involving discriminatory policies or multiple victims) in FY 2015 to only 86 lawsuits in FY 2016 (including 58 individual suits and 29 suits involving multiple victims or discriminatory policies). Further, at the end of the fiscal year, the EEOC had 165 cases on its active docket. At the end of FY 2015, the EEOC had 218 cases on its active district court docket. This data illustrates how the EEOC has refocused its agenda to put its eggs into ever larger baskets.

Systemic Investigations

The number of systemic investigations completed by the EEOC remained the same. In FY 2016, EEOC field offices resolved 273 systemic investigations and obtained over $20.5 million in remedies in those resolutions (with 71 of the FY 2016 resolutions resulting from successful conciliations). In addition, the agency issued reasonable cause determinations finding discrimination in 113 systemic investigations. By comparison, in FY 2015, the agency reported that it completed 268 systemic investigations; issued 109 cause findings; and resolved 70 systemic investigations by voluntary conciliation agreements, obtaining over $33.5 million in remedies as a result of its systemic initiative.

Accordingly, although the EEOC completed roughly the same number of systemic investigations in FY 2015 and FY 2016 and issued a similar number of reasonable cause determinations in those years, FY 2016 collected a substantially lower amount of money as a result of these larger pattern and practice cases.

Implications For Employers

While the numbers confirm our predictions from 2015 ( here) and 2014 ( here) that the EEOC would continue its pursuit of high-profile systemic litigation, whether that agenda has been a success is an open question. For example, the EEOC's financial recoveries have not markedly increased. If and how the EEOC adjusts its tactics to adapt to the incoming Trump administration remains to be seen. If that administration moves in a more employer-friendly direction, or restricts the EEOC's funding, that could cause the EEOC to rethink its priorities and its approach to its enforcement program.

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.

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Authors
Gerald L. Maatman Jr.
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