EEOC Tops $482M for Bias Victims, Cuts Charge Backlog

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By Kevin McGowan

Nov. 16 — The EEOC obtained more than $482.1 million for victims of alleged discrimination during fiscal year 2016 while reducing its inventory of pending bias charges, the agency announced.

The Equal Employment Opportunity Commission Nov. 16 released its annual performance and accountability report, which details the agency’s record in receiving, resolving and litigating bias charges against private and government employers.

The EEOC received 91,503 new private sector discrimination charges during fiscal 2016 but resolved 97,443 charges, cutting its backlog to 73,508 pending charges as of Sept. 30.

Why the Drop in Lawsuits?

The EEOC recently has been filing fewer lawsuits but obtaining healthy monetary recoveries for bias victims through administrative settlements as well as court actions.

But it’s surprising the agency filed just 86 lawsuits on the merits of discrimination compared with 142 such lawsuits filed in fiscal 2015, according to management lawyers interviewed by Bloomberg BNA Nov. 16.

It’s impossible to know what caused the drop, but the EEOC’s emphasis on resource-intensive cases of alleged systemic bias could be affecting its ability to file new lawsuits, said Rae Vann, a partner with NT Lakis who also is general counsel to the Equal Employment Advisory Counsel in Washington.

“Clearly, the systemic program is having an impact,” Vann told Bloomberg BNA.

The takeaway is that the EEOC is all in on its systemic program, in which it seeks to identify, investigate and litigate bias charges involving employment practices that affect large numbers of workers in a company, industry or region.

“By filing big systemic lawsuits, the commission is trying to get the most bang for its buck in enforcing the law based on its budget and manpower,” said Gerald Maatman, a partner with Seyfarth Shaw in Chicago.

“If you are a brand name in an industry or employ lots of people, ‘bet the company’ EEOC lawsuits are more apt to be filed against you,” Maatman told Bloomberg BNA.

In fiscal 2016, the EEOC resolved 273 systemic investigations without litigation, obtaining $20.3 million in remedies, the report said.

The agency also resolved 21 systemic cases in which lawsuits had been filed, six of which included at least 50 discrimination victims and two of which involved more than 1,000, the EEOC said.

The EEOC had 165 cases on its active litigation docket as of Sept. 30, with 47 of those (28.5 percent) involving challenges to alleged systemic discrimination.

Numbers Favor Systemic Cases

The EEOC is more likely to find “reasonable cause” that discrimination has occurred in a systemic case, said J. Randall Coffey, a partner with Fisher & Phillips in Kansas City, Mo.

The agency in fiscal 2016 found reasonable cause in 41 percent of systemic cases, compared with only 4 percent to 5 percent of other charges, Coffey told Bloomberg BNA.

The EEOC also successfully conciliated, or settled without a lawsuit, 57 percent of systemic cases in which it had found cause, said Barry Hartstein, a partner with Littler Mendelson in Chicago.

That’s down from a 67 percent successful conciliation rate for systemic cases in fiscal 2015, but still high compared with rates for other types of EEOC charges, Hartstein told Bloomberg BNA.

The “most noteworthy” aspect of the EEOC’s report is the “continued outsized numbers” related to systemic cases, Coffey said.

Focus in Trump Administration an Open Question

Whether the EEOC will focus as much on systemic discrimination issues in the upcoming Trump administration is an open question.

But the five-member EEOC in 2006, during the Bush administration, unanimously adopted an internal task force report urging a renewed emphasis on systemic cases.

Commissioners from both parties have supported the systemic program.

Practitioners must take a “wait and see approach” regarding the systemic program’s future as well as other issues in the new administration, Hartstein said.

“But I don’t think the systemic initiative is going to disappear,” he said.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

For More Information

Text of the EEOC’s report is available at http://src.bna.com/j7b.

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