EEOC’s First Year Performance Under Biden Nosedived In a Big Surprise and Amid Reduced Transparency

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On this first-year anniversary of the Biden Administration, we took a look at what the civil rights agencies had accomplished and had failed to do. We start this week with the U.S. Equal Employment Opportunity Commission (“EEOC,” or “Commission”) and will proceed next week to the U.S. Office of Federal Contract Compliance Programs (“OFCCP”).

Defying all expectations, the EEOC came off previous back-to-back record-setting years, many carrying back to the Obama years and through the Trump years, and suddenly and unexpectedly decreased performance across all of the significant performance metrics the agency annually tracks. The stats do not show an occasional or aberrational decline of performance measures but rather a general decline across-the-board, as though a malaise had beset the EEOC. Obama EEOC Chairs Stuart J. Ishimaru, Jacquelin A. Berrien and Jenny R. Yang and Trump Acting Chair Victoria Lipnic and Chair Janet Dhillon all successively and successfully drove the Commission to new heights of performance before the Commission’s last year’s sudden fall to earth. Indeed, the Commission dedicated itself to self-improvement in all major metrics beginning in significant measure during the five-year term of EEOC Chair Cari Dominguez (R-George W. Bush Administration) and term of Chair Jacquelin Berrien (D-Obama Administration). Both of these Chairs inaugurated numerous and significant internal reforms which “set the table” for their successors to streamline and improve agency performance. Chair Jenny Yang (D-Obama) then took the handoff from Chair Berrien and moved the Commission forcefully forward and with vigor. Janet Dhillon (R-Trump) then drove the Commission’s annual performance measures off the charts as we show below.

We found the below surprising and unexpected data buried deep in the detailed public reports the EEOC annually publishes, especially the U.S. Equal Opportunity Commission’s Fiscal Year 2021 Agency Financial Report (“FY 2021 AFR”) and the U.S. Equal Employment Opportunity Commission’s Litigation Statistics, FY 1997 to FY 2020 (“Lit Stats”). We have not attempted to determine what went wrong to cause the Commission’s reversal of fortunes during its first year of the Biden Administration. The Commission’s published performance statistics are all the more surprising since they arise against the background of an Administration which set out with such great hope for civil rights enforcement, freshly fueled by the Black Lives Matter movement and the oral commitment of President Biden to push forward hard for equality in America. What we do know, though, is that neither staffing nor the COVID-19 pandemic contributed to the problem. EEOC Chair Charlotte A. Burrows (D-Biden) has proudly reported extensive hiring since President Biden elevated her from being a Commissioner to Chair of the EEOC a day after the President was sworn into office a year ago on January 20, 2021. While the EEOC’s staffing number changes almost daily, it appears that in 2021 that EEOC headcount increased by over 450 new-hire backfill-replacements in addition to the filling of new positions. Indeed, as we earlier reported, it appeared the EEOC employed for a moment even more employees than its budget authorized as we reported in a November 16, 2021 WIR story. Moreover, the year-over-year comparison of last-year Trump/Dhillon EEOC performance measure statistics to first-year Biden/Burrows statistics occurred during times both Administrations were in the COVID-19 pandemic. (The COVID-19 pandemic officially began in the United States in January 2020 and most of us began to work remote from home (including the EEOC) in March 2020.)

EEOC Data Metric

FY 2020

FY 2021

Comment

Charge Backlog (euphemistically now called “inventory” … no supply chain problems here!)

41,951

42,811 (+2.05% increase in Charge Backlog)

-an increase in this metric is not desirable

This is one of the Commission’s two most historically important performance metrics. FY 2021’s 2.05% increase in Charge backlog (not good), despite an almost 5% increase in staffing reversed a 6-year trend of steadily declining Charge inventories which Chair Jenny Yang began in earnest in FY 2015. Indeed, the EEOC has been crowing for years about its steady reduction of its Charge inventory/backlog as we noted here in a May 28, 2021 WIR story reporting Chair Burrow’s FY 2022 Budget Plan and the actual stair-step down statistics on the EEOC’s formerly successful efforts to reduce its Charge backlog.

Transparency Alert: For the first time since the beginning of the Obama Administration, the Commission declined to publish new Charges filed in FY 2021 (although rumor has it that Charge filings were down, making the EEOC’s sudden increased inefficiency even greater)

Backpay Recoveries

$535.4M

$484M (9.6%) decrease in Backpay

-a decrease in this metric is not desirable

This was a shocker since this is a very significant decrease not typically seen at the EEOC which has since the Bush Administration enjoyed ever-increasing backpay recoveries, especially under the Americans with Disabilities Act.

Litigation Recoveries Subset

$106M

$34M (a decrease of 66% on a big number)

The biggest surprise came from reduced backpay recoveries through Litigation: the lowest since 2014 ($22.5M) and 2nd lowest in the last quarter century

Settlements of lawsuits Subset

165

138 (a decrease of 16.4%)

The Commission was obviously taking too hard-edged an approach to settlement and the market did not react well.
Transparency Alert: The EEOC’s 2021 changed position on transparency in settlements also thwarted and burdened settlement opportunities as we previously predicted here at the time the Commission converted to its current “Pig-in-The-Poke” settlement demand architecture

Compliance Assistance/Community & Employer Outreach Efforts

2,690 Events

299,100 People

2,325 Events (13.6% decline)

254,830 People

These are metrics the Republicans always like to crow about, so it was no surprise Chair Burrows took her foot off the throttle of Compliance Events and “People” attendance of those events. It is usually the “Backpay Recoveries” chart which Democrats like to crow about, although the Trump Administration was a surprise when it hit the accelerator and increased Litigation Recoveries to record levels

Federal Sector Performance

   

While the federal sector is not terribly relevant to private sector employer interests, it appeared to us to be a useful double-check to see if the Commission’s performance malaise in 2021 was limited to the private sector, or whether it had widespread application. Unfortunately, a peek at the Commission’s 2021 performance metrics revealed an unsettling consistency with the downward spiral of the Commission’s performance metrics on the private sector side…just a down year across-the-board for the EEOC.

-Hearing Resolutions

9,897

9082 (a decrease of 8.2%)

 

-Appeals Resolutions

4308

4172 (a decrease of 3.2%)

 

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