EEOC's Money Remedies, Charge Activity Rose in FY 2015

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By Kevin McGowan

Nov. 19 — The Equal Employment Opportunity Commission obtained more than $525 million in remedies for alleged discrimination in private and government employment during fiscal 2015, while achieving record success in conciliating bias charges before litigation, the agency reported Nov. 19.

In its annual performance and accountability report, the EEOC said it resolved 92,641 discrimination charges during the year that ended Sept. 30, 2015, while receiving 89,385 new private sector bias charges. Both those figures represent increases from fiscal 2014, when the agency received 88,778 new charges while resolving 87,442 charges of discrimination.

The EEOC report contains preliminary numbers on enforcement and other activities that the agency provides to Congress. Those statistics will be supplemented early in 2016 with more detailed fiscal 2015 data, including what types of bias charges were most prevalent. The EEOC grades its own performance based on criteria and goals set under its current strategic plan and strategic enforcement plan, which the Office of Management and Budget has authorized the agency to extend though fiscal 2018.

Large Cases a Top Focus 

The EEOC continues its emphasis on alleged systemic discrimination, which refers to claims challenging employment practices that broadly affect an employer, industry or wide geographic area.

In fiscal 2015, the EEOC completed 268 investigations of alleged systemic discrimination, attempted to settle 70 of those cases before litigation, successfully conciliated 37 systemic cases and had other charges withdrawn with benefits, the agency said. That yielded more than $33.5 million in remedies for alleged systemic discrimination victims, the EEOC said.

The EEOC in fiscal 2015 also resolved 26 systemic cases through litigation, including six cases with 50 or more discrimination victims and 13 cases with 20 or more discrimination victims, the agency said.

The EEOC filed 142 lawsuits on the merits of discrimination claims during fiscal 2015, of which 42 involved multiple discrimination victims and 16 were systemic cases, the agency said. Of the 218 cases on the agency's active docket, 48 involve alleged systemic discrimination (22 percent) and 40 are multiple victim cases (18 percent), the EEOC said.

Those figures are up in some respects from fiscal 2014, when the agency filed 133 merits lawsuits. But the EEOC in fiscal 2014 filed 17 systemic lawsuits and it had 228 merits cases on its active docket, of which 57 (25 percent) were systemic cases.

The fiscal 2015 monetary recoveries include $356.6 million for private sector and state and local claimants through mediation, conciliation and settlements, the EEOC said. That's a sizable increase from the $296.1 million obtained through administrative means in fiscal 2014 and more in line with amounts recovered in fiscal 2013 and earlier years.

The agency recovered an additional $63.5 million for EEOC charging parties through litigation and $105.7 million for federal employees and applicants alleging unlawful discrimination, the EEOC said.

The EEOC's case inventory, or charge backlog, stood at 76,408 pending charges as of Sept. 30, 2015, a “slight increase” from 75,935 pending charges a year earlier, the agency said.

The EEOC in fiscal 2015 achieved record success in its conciliation of private-sector charges, with 44 percent of conciliations successfully resolved and 64 percent of systemic investigations resulting in voluntary resolutions, the agency said. The EEOC is required to conciliate, or try to settle, charges prior to filing a lawsuit after it determines there is reasonable cause to believe discrimination has occurred.

The EEOC in fiscal 2015 hired a “significant number” of new front-line staff, including more than 100 new investigators, EEOC Chair Jenny Yang said in her introduction to the report. But because of many retirements among agency staff, the EEOC had a net increase of 123 employees, Yang said. The EEOC currently has more than 2,300 employees located in Washington and 53 field offices.

‘Ceiling' on Systemic Cases?

From an employer's perspective, the numbers generally show the EEOC shifting its focus and resources from individual cases to multi-victim, systemic cases, said Gerald Maatman of Seyfarth Shaw LLP in Chicago.

The EEOC settlement amounts in private sector cases are up by about $60 million in fiscal 2015 compared with the $296.1 million recovered through the administrative process in fiscal 2014, Maatman said.

Also, the agency's litigation recovery amount for systemic cases rose to $33.5 million in fiscal 2015, up from $13 million in fiscal 2014 and closer to the $40 million recovered in fiscal 2013, Maatman told Bloomberg BNA Nov. 19.

That suggests that fiscal 2014 was a “bottom of the barrel” year for the EEOC's obtaining monetary relief in systemic litigation and that fiscal 2015 represents more of a norm that employers can expect going forward, Maatman said.

The number of new systemic lawsuits filed dropped slightly in fiscal 2015 compared with fiscal 2014, but such lawsuits still account for 22 percent of the EEOC's active docket, Maatman said.

The slight decrease in raw numbers might reflect the reality that systemic cases are harder to develop and take longer to litigate than individual claims, Maatman said. While the EEOC might be able to close an individual claim within six months, for example, it can take years to settle or to litigate a systemic case, he said.

Maatman said his impression is the EEOC is “stretched” when it comes to systemic litigation. The agency may want to file more systemic lawsuits, but it lacks the resources or personnel to do so, he said. The EEOC faces a “ceiling” on how many systemic lawsuits it can realistically pursue, Maatman said.

An employer may be “threatened with a systemic case,” but the EEOC doesn't necessarily follow through, sometimes issuing a right-to-sue letter that allows the charging party to pursue a private suit, Maatman said.

The EEOC's “bark is a little worse than the bite” regarding the potential for a systemic lawsuit, Maatman said. The EEOC must make choices regarding its resources and how to spend them wisely, which puts a cap on systemic suits, he said.

The EEOC's ‘New Normal.'

The number of private sector charges received, agency lawsuits filed and percentage of systemic cases in fiscal 2015 may reflect a “new normal” for the agency, according to Barry Hartstein of Littler Mendelson in Chicago.

After approaching almost 100,000 charges a year from fiscal 2011 through fiscal 2013, the EEOC in fiscal 2014 dropped to 88,778 charges and posted another sub-90,000 charge year in fiscal 2015, Hartstein said. The number of EEOC lawsuits filed annually has decreased from the 261 lawsuits filed in fiscal 2011, which was a typical number for the early 2000s.

The “dramatic increase” in systemic litigation monetary recoveries from $13 million in fiscal 2014 to $33.5 million in fiscal 2014 is tempered by the fact the EEOC obtained $40 million in such cases in fiscal 2013, Hartstein told Bloomberg BNA Nov. 19. That suggests the EEOC is “back to where they were” a few years ago and the $13 million in fiscal 2014 is the aberration, he said.

It's notable that although the EEOC finds reasonable cause to believe discrimination has occurred in about 3 percent to 4 percent of all charges filed with the agency, it finds reasonable cause in roughly 40 percent of systemic discrimination charges, Hartstein said.

The EEOC report indicates that of the 142 agency lawsuits filed in fiscal 2015, 53 involved Americans with Disabilities Act claims, or 37 percent of the total, Hartstein said.

That “tremendous focus” on the ADA is consistent with the agency's enforcement numbers in recent years, Hartstein said. Also, the EEOC will pursue individual claims under the ADA and appears less driven by the systemic focus in this area than under other antidiscrimination statutes, he said.

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

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the EEOC's performance and accountability report is available at http://src.bna.com/baf.