The U.S. Equal Employment Opportunity Commission’s fiscal year ended on Sept. 30, 2017 and it has released its yearly "Performance and Accountability Report." Although this is a look back, it provides insight on what is important to the commission and, perhaps, how we can stay off its radar.
Remember that the EEOC’s mission is to stop and remedy unlawful employment discrimination. The commission has three strategic objectives to guide its efforts:
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Combat employment discrimination through strategic law enforcement;
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Prevent employment discrimination through education and outreach; and
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Deliver excellent and consistent service through a skilled and diverse workforce and effective systems.
With those objectives in mind, you can read the full report or take a look at some of the highlights.
More Efficiency and More Online Systems — Quicker Resolution?
The EEOC wants to be more efficient and thinks it is making some progress. First, offices are prioritizing charges to focus on meritorious charges and disposing of charges more quickly. It received more than 84,000 charges in fiscal year 2017 and resolved over 99,000 — an increase of 1,600 charges over FY 2016. The commission also reduced its pending inventory level to 61,621 charges, reducing its backlog to the lowest in 10 years.
Another innovation has been the EEOC’s Digital Charge System. Phase 1 (the Respondent Portal) allowed employer-respondents electronic access to download charges, elect mediation, submit position statements, etc. In March 2017, the EEOC piloted Phase 2 (the Public Portal/Online Inquiry and Scheduling) in five field offices; this appears to be the flip side of the Respondent Portal. Now employees can perform self-screening, file precharge inquiries online, schedule appointments with field offices, exchange documents with the EEOC, check the status of their charges, and electronically sign the charge of discrimination all from the comfort of their homes. On Oct. 23, 2017, the EEOC deployed the Public Portal to all of its offices and has scheduled nationwide deployment for early 2018.
More Money, Happier Mediation Participants, More Lawsuits
As with so many government agencies, the EEOC is touting the amount of money it has recovered. The EEOC collected nearly $400 million from employers in the private sector and state and local governments. Of that amount, the vast majority ($355.6 million) was paid voluntarily through mediation, conciliation and other administrative enforcement.
But it is not just about money. The EEOC reported that 85.7 percent of administrative and legal resolutions (i.e., resolutions with consent decree or settlement) included targeted equitable resolution (TER). What is TER you may ask? The EEOC defines it as “non-monetary and non-generic relief (other than the posting of notices in the workplace about the case and its resolution), which explicitly addresses the discriminatory employment practices at issue in the case and either provides remedies to the aggrieved individuals or prevents similar violations in the future.”
On the alternative dispute resolution front, the commission resolved 40 percent of conciliations involving private sector charges (a decrease from 2016), and engaged in 7,218 mediations resulting in over $163.7 million in benefits to charging parties. As a side note, the commission reports that 96.5 percent of mediation participants said they would use the process again.
On the litigation front, the EEOC recovered $42.4 million and stepped up the number of lawsuits it filed to 184, more than doubling the number from FY 2016. Of that number, 124 suits were on behalf of individuals, 30 were nonsystemic suits with multiple victims, and 30 were systemic suits involving multiple victims or discriminatory policies. Lest you think this suggests a flagging interest in systemic cases, the commission exceeded its goals, with systemic cases constituting more than 24 percent of its litigation docket. (The report also mentioned that the EEOC issued cause determinations in 167 systemic investigations and resolved 329 systemic investigations administratively.)
What kinds of cases did the EEOC file this year? The breakdown of violations were as follows: disability (75), sex (64), retaliation (53), race (21), religion (12), national origin (eight), age (12), and genetic information (three). The issues raised most frequently were discharge (103), reasonable accommodation (53), hiring (44) and harassment (30).
Some cases the EEOC highlighted include:
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Sexual Orientation Harassment (EEOC v. Capital Restaurant Concepts d/b/a Paolo’s Ristorante (D.D.C. 2017)): The restaurant allegedly allowed employees to harass a gay male server with repeated homophobic epithets and taunts. When he complained, management allegedly told him he was being “too sensitive.” The result was a consent decree and $50,000 to the server.
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Systemic Discrimination in Hiring: A restaurant agreed to pay $9.6 million to class members following the EEOC finding that the company had systemically discriminated against African Americans in the hiring process. The agreement requires an overhaul of the hiring procedures, including the use of extensive applicant tracking and targeted hiring goals.
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Extended Leave as an Accommodation (EEOC v. UPS (N.D. Ill. 2017)): The EEOC’s lawsuit alleged that the defendant refused to extend leave as a reasonable accommodation and to allow employees to return to work with restrictions. The consent decree provided $1.7 million to 88 current and former employees and required updated policies and implementation.
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Pregnancy Discrimination and Accommodation (EEOC v. Allsup’s (D.N.M. 2017)): The EEOC alleged that the defendant failed to provide reasonable accommodations for pregnancy-related disabilities, forcing pregnant employees to take unpaid leave. The consent decree provided $950,000 to 28 women (with reinstatement offers and reference letters), along with improved policies.
Takeaways
First, the EEOC is clearly trying to reduce the amount of time that a charge spends with the agency. Perhaps the improved efficiencies will make charges that pend for more than two years a thing of the past.
Second, the EEOC is tracking targeted equitable resolution so its negotiators will probably push hard to get it. Go into any negotiation with concrete ideas of new policies, training programs and outreach that you are willing to implement and the costs associated with those changes.
Finally, note that the majority of the EEOC’s lawsuits are filed on behalf of individuals — not multiple plaintiffs or systemic issues (although the commission is targeting systemic cases). The EEOC has a list of priorities (harassment, pay disparity and disability are perennial favorites) and wants to make law on those issues. These numbers make clear that the commission is willing to make that law one plaintiff at a time.
Republished with permission. This article originally appeared on Law360 on December 20, 2017.
