EEOC Update: The Commission Unveils New Guidance To Provide More Transparency For Commissioner Charges And Directed Investigations

Seyfarth Synopsis:  On June 5, 2020, the EEOC rolled out a new webpage specifically addressing its procedures for instituting Commissioner charges and directed investigations. The webpage provides much-needed insight into these important tools in the EEOC’s arsenal and is a must-read for any employer engaged in litigation with the Commission.

Commissioner Charges

In addition to charges filed by individuals, the EEOC can investigate possible discrimination under Title VII, the ADA, and GINA using “Commissioner charges.” Traditionally, such charges are high-impact litigation situations with the potential to involve large numbers of claimants and seven figure settlement demands. According to the EEOC’s new webpage, Commissioner charges generally are brought about one of three ways: (1) an EEOC field office learns about possible discrimination in a workplace where no individual has filed a charge; (2) a field office learns about one or more new allegations of discrimination while investigating an existing charge; or (3) a Commissioner learns about discrimination in a workplace and asks a field office to investigate the allegations. The new webpage includes significant background information regarding the EEOC’s procedures in investigating and conciliating Commissioner charges, as well as FAQs for employers and employees alike. Notably, the EEOC also includes statistics regarding the number of Commissioner charges filed over the past five years, which reveal that the number of Commissioner charges has dropped from a high of 17 charges in 2017 to 9 charges filed in 2019.

Directed Investigations

The EEOC also has the authority to investigate, on its own initiative, possible age discrimination under the ADEA and pay discrimination based on sex under the Equal Pay Act, even where no charge has been filed. These “directed investigations” can be initiated by District Directors without approval from an EEOC Commissioner. The Commission’s new guidance includes helpful background on the EEOC’s available tools and powers during such an investigation, as well as additional FAQs and statistics on investigations commenced over the past five years. According to the website, the number of directed investigations initiated by the Commission has dropped from 230 investigations in 2016 to 55 investigations in 2019.

Implications For Employers

The goal of the new webpage is to make the EEOC’s processes “fully transparent and useful to the public.” The information provided on the new webpage is a much-needed insight into additional tools at the EEOC’s disposal and will be a helpful guide for employers responding to a Commissioner charge or directed investigation.

This new guidance is the latest in a number of changes at the EEOC and is consistent with the EEOC’s push for greater transparency. We have been tracking the latest changes at the EEOC here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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