What can employers expect from the EEOC in 2015? A look back at 2014 may give some indication of the direction the agency will take.
EEOC Focuses on “Challenging Systemic Discrimination”
One 2014 accomplishment the EEOC announced in its 2014 Performance and Accountability Report (PAR) is success challenging systemic discrimination in the workplace. As evidence, the agency cited the filing of 17 systemic lawsuits in FY 2014. Furthermore, at the end of FY 2014, the EEOC had a backlog of 228 pending cases, 25% of which (57) concentrate on systemic discrimination. This is the largest proportion of systemic cases since the agency began tracking them in FY 2006, and it means the EEOC has already exceeded its FY 2016 performance measure for the percentage of systemic cases in the active docket (the goal being 22% – 24%). Commissioner Yang reinforced the strategic importance of these cases in the 2014 PAR, writing, “This is significant because systemic cases address policies or patterns or practices that have a broad impact on a region, industry or entire class of employees or job applicants.
As 2015 begins, the EEOC demonstrates a continued focus on enforcement through legal action. In early April, the EEOC settled with Local 28 of the Sheet Metal Workers’ International Association (Union) of New York City in a 44-year old case. The Union, as partial settlement of Title VII race discrimination claims against black and Hispanic journeymen, has agreed to pay an estimated $12.7 million over a five-year period (pending Court approval in July). Also expected is the court’s decision on the proposed Patterson-UTI Drilling Company settlement involving allegations of a nationwide pattern of discrimination against minority employees. The potential monetary total of the Patterson settlement is $12.2 million. Both of these cases’ proposed monetary settlements are separately just shy of the $13 million received in litigation settlements by the EEOC in all of FY 2014, and combined, more than the $22.5 million total reached through litigation or settlement by the EEOC in all of FY 2014 (merit suits).
Most recently, the EEOC issued a finding of probable cause against New York City for discrimination against female, nonwhite administrative managers with potential damages of $187 million in back pay and $57 million in compensatory damages. These three matters, add up to a potential monetary amount of $269 million (if all are approved). They align with three nationwide priorities EEOC announced in the EEOC Strategic Enforcement Plan for Fiscal Years 2013-2016:
- Eliminating Barriers in Recruitment and Hiring
- Enforcing Equal Pay Laws
- Preventing Harassment through Systemic Enforcement and Targeted Outreach
Overview of EEOC Performance in 2014
So, just how did the EEOC fare overall in FY 2014 according to the EEOC’s FY 2014 enforcement and litigation data?
The EEOC obtained $296.1 million (down from $372.1 million in FY 2013) in total monetary relief through its enforcement program prior to the filing of
litigation. This is the lowest total monetary relief amount since FY 2009. (All Statutes FY 1997 - FY 2014)
The total number of individual charge filings was 88,778 (the lowest since FY 2007). Of those charges, 87,442 were resolved (the lowest since FY 2009). (All Statutes FY 1997 - FY 2014)
The EEOC’s finding of reasonable cause in FY 2014 (3.1%) continued its downward trend since FY 2010, and was the lowest percentage of all reported percentages from FY 1997 on. (All Statutes FY 1997 - FY 2014)
The percentage of claims alleging retaliation reached a record high (42.8% of all charges filed). In descending order, the next highest four claims were: race including harassment (35%), sex which includes harassment and pregnancy (29.3%), disability (28.6%), and age (23.2%). (Charge Statistics FY 1997 through FY 2014)
Looking at the charges broken down by Statute (Title VII, Age Discrimination in Employment Act (ADEA), and Americans with Disabilities Act (ADA) by Issue (such as job assignment, discharge and wages, for example) reveals that discharge was the most common issue under all the statutes (33,527 under Title VII, 11,144 under ADEA, and 14,736 under ADA in FY 2014). Discharge was also the most common issue in FY 2010 – 2013. The next most common issue was harassment or sexual harassment, followed by harassment (not including sexual harassment, unless alleged in a single charge), and terms/conditions of employment. (Statutes by Issue FY 2010 – FY 2014)
EEOC in 2015EEOC has already moved to address its strategic objectives to eliminate discrimination through legal enforcement, education and outreach, and efficient delivery of agency services.
In January 2015, the EEOC announced the formation of a task force to study workplace harassment. The EEOC Select Task Force on the Study of Harassment in the Workplace is co-chaired by Commissioners Felblum and Lipnic and its 16 members are charged with developing strategies and promoting practices to prevent and correct harassment in all its forms.
As part of a federal cross-agency initiative, the EEOC authored a resource guide “Recruiting, Hiring, Retaining and Promoting People with Disabilities” in February 2015. The guide is designed to help employers navigate core issues related to the employment of people with disabilities. It identifies relevant federal and federally funded resources for employers looking to recruit, hire, retain, and promote people with disabilities.
The EEOC and the Department of Justice, Civil Rights Division, signed a Memorandum of Understanding (MOU) in March 2015 with the purpose or promoting interagency coordination regarding Title VII employment discrimination charges against state and local governments (both the EEOC and the Civil Rights Division of the DOJ share authority for these charges).
Also in March 2015, the EEOC released its latest edition of the quarterly “Digest of EEO Law” online. The Summer 2014 edition contains summaries of EEOC decisions and federal court cases. It also contains an article entitled, “The Law of Harassment: Assisting Agencies in Developing Effective Anti-Harassment Policies.” Access the most recent issues here.
In addition, the EEOC is seeking public input (comments due April 20) on its review of EEOC regulations to determine whether they should be modified, streamlined, expanded or repealed, in order to achieve efficiency and lessen the public burden.
Additional information on employment discrimination, our labor economists, and ERS Group matters involving the EEOC are available by visiting our Employment Discrimination practice page and Employment Discrimination Case Studies page.