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Last fiscal year, the agency filed the lowest number of individual lawsuits in the past 10 years
A greater focus on systemic investigations and a marked reduction in the number of cases filed are the hallmarks of fiscal year (FY) 2016 at the U.S. Equal Employment Opportunity Commission (EEOC), according to attorneys at Littler.
The firm examined the EEOC's Fiscal Year 2016 Performance and Accountability Report (PAR) and the agency's 2016 systemic report, which highlights key EEOC accomplishments in the last fiscal year.
"The agency continues to devote a significant amount of its limited resources to 'systemic discrimination,' " Littler found. The EEOC defines systemic discrimination as "pattern-or-practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company or geographic location."
"Employers need to be aware of the troublesome statistics regarding the increased likelihood of a reasonable cause finding based on a systemic investigation," said Barry Hartstein, an attorney in Littler's Chicago office. "While not highlighted by the agency or published on its website, there is nearly a 40 percent likelihood of a reasonable cause finding when faced with a systemic investigation, as compared to the fact that the EEOC historically has issued reasonable cause findings in less than 5 percent of the charges filed with the agency."
"Based on these publications, the EEOC has been far more transparent than ever in shedding greater light on its systemic initiative," Hartstein noted.
Systemic Charges Play Key Role
The Littler report notes that most of the EEOC's successes attacking hiring barriers have involved large-scale systemic disparate treatment claims. Some pending lawsuits allege discrimination based on race, color, gender, religion, national origin, disability and age.
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Hartstein said the 2016 systemic report sends a strong message that stopping harassment remains an important priority at the EEOC. In June 2016 the EEOC's task force on harassment recommended a reboot of anti-harassment initiatives, culminating in the EEOC's recent proposed guidance on harassment.
The 2016 systemic report also referred to the EEOC's efforts dealing with "pay and promotion practices," but the discussion primarily focused on EEOC litigation and settlements dealing with promotion claims. Although the report cited several multimillion dollar settlements and conciliation agreements, no recent systemic successes were discussed. That is because, Hartstein said, in this area the EEOC was handed some of its most stinging setbacks.
In EEOC v. Port Auth. of N.Y. & N.J., for example, the district court criticized the EEOC for failing to state any Equal Pay Act (EPA) claim for which relief could be granted despite a three-year investigation. In this case, the EEOC claimed that the Port Authority paid female nonsupervisory attorneys less than their male counterparts. On appeal, the 2nd U.S. Circuit Court of Appeals faulted the agency for depriving the court of "any basis from which to draw a reasonable inference that the attorneys performed 'equal work,' the touchstone of an EPA claim" because it failed to allege any facts concerning the attorneys' actual job duties.
Despite those setbacks, Hartstein believes recent events "make it abundantly clear" that the EEOC will be giving significantly increased attention to pay discrimination—including EPA issues.
Reduced Agency Caseloads
One of the most notable statistics pointed out in the Littler report was the lower number of lawsuits. In FY 2015, the EEOC filed a total of 142 lawsuits. In the previous 10 years, the fewest number of lawsuits filed by the EEOC was 122 in FY 2012. Since 2005, Littler analysts reported, the agency has typically filed between 250 and 381 lawsuits each fiscal year. However, in FY 2016 the EEOC only filed 86 lawsuits.
Based on informal discussions with individuals at EEOC headquarters, Hartstein said the marked decrease in lawsuits filed stemmed from a combination of factors, including the time required by various systemic matters and turnover at the agency. "The EEOC wanted to ensure that it could properly prosecute the lawsuits it filed," he said.
Hartstein anticipates that the commission will maintain the "new normal" of a reduced caseload but will increase the number of systemic lawsuits. As an example, although there was a decrease of approximately 35 percent in the number of lawsuits filed between FY 2015 and FY 2016, the EEOC increased the number of systemic lawsuits filed during the past two fiscal years (from 16 to 18). The percentage of pending multiple-victim suits in the federal courts also increased, including a rise in the percentage of pending systemic lawsuits from 22 percent (48 out of 218) to 28.5 percent (47 out of 165).
EEOC to Continue Focusing on Systemic Investigations
He explained that a higher success rate of systemic investigations ensures that the EEOC will continue to focus its resources in those efforts. Because of that, and despite criticism from Republican members of Congress for pursuing systemic cases where there is no aggrieved employee, Hartstein doesn't see the EEOC diverging from its course of pursuing systemic claims through more class-action and pattern-or-practice cases. "From a practical perspective, regardless of who the Trump administration puts in [to replace former General Counsel David Lopez], for cases that are already in court, these are big-ticket items."
The EEOC's recently adopted strategic enforcement plan for 2017-2021 also clearly shows that the agency will continue to be strategic based on its limited resources, the Littler report said. But the EEOC may be more careful in selecting cases for litigation to limit criticism of the agency, which could have a direct impact on its budget and staffing levels.
"The EEOC, in my view, will certainly continue the systemic initiatives in the coming administration—that's not going to change," observed Hartstein. "However, I do believe the approach by the agency will be more tempered."
Robert Teachout, SHRM-SCP, is a writer in Washington, D.C., who covers employment law and HR issues.
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