As we size up the 2018 agendas of federal enforcement agencies, one item to watch out for is whether the Equal Employment Opportunity Commission will expand or scale back on class and systemic discrimination litigation.
In its draft strategic plan for fiscal years 2018-2022, the EEOC admits that “[e]ffective strategic enforcement includes a balance of individual and systemic cases.” (Public comments on the draft plan are due by Jan. 8.)
The White House, however, hasn’t yet submitted a nomination for the EEOC’s vacant general counsel position, which is a Senate-confirmed position that plays a key role in determining the agency’s enforcement agenda on class and systemic litigation. Budgetary resources may also influence such litigation given its costly nature.
An annual performance report from the EEOC shows that the agency filed 184 lawsuits on the merits of discrimination in fiscal 2017, compared with only 86 lawsuits in fiscal 2016. The lawsuits filed in 2017 included 124 individual complaints and 30 lawsuits concerning multiple victims or discriminatory policies. By the end of fiscal 2017, the agency had 242 cases on its active litigation docket, with 42 of those (17.4 percent) representing multiple-victim cases and 60 (24.8 percent) involving challenges to systemic discrimination.
Richard R. Meneghello, a management attorney with Fisher Phillips in Portland, Ore., told Bloomberg Law that employers may see noticeable changes in the figures on individual, class, and systemic lawsuits when the EEOC releases its annual performance report for fiscal 2018. He was responding to emailed questions on EEOC enforcement and litigation. Below is an edited version of the responses he supplied.
BLAW: Which court case litigated by the EEOC will you be closely monitoring in 2018 and why?
Meneghello: I’m not necessarily looking at individual cases but more at whether the EEOC will ratchet back its approach when it comes to large-scale, systemic cases. In the past year, nearly a quarter of all cases filed by the EEOC were classified as systemic—those cases where the agency seeks to tackle what it believes to be a discriminatory pattern or practice by an employer (perhaps disparate compensation practices at large employers), or takes aim at policies that have a broad impact on an industry, company, or geographic area (think criminal history inquiries during the hiring process). I believe that the new administration might very well focus its attention on specific pieces of litigation involving single claimants in the new year, believing that it should not play as active of a role when it comes to setting the nation’s agenda.
BLAW: What will you keep an eye on when it comes to the EEOC under the Trump administration?
Meneghello: I think all employment law attorneys are waiting to see what the agency comes up with as part of its new and updated sexual harassment guidance. Soon after the #MeToo sexual harassment movement took off in earnest, the EEOC announced that it would soon release updated guidelines on the subject for the first time in over 20 years.
Acting EEOC chair Victoria Lipnic acknowledged that “the update comes up at a time of burgeoning publicity for sexual harassment and assault in the workplace,” though she said the timing of the update was “purely coincidental.” After several years of drafting and editing, which included incorporating public opinion on key issues, the EEOC unanimously approved the new guidelines a few months ago, and will release them to the public after being approved by the White House. While I don’t think we’ll see any dramatic changes, it will be interesting to see how the agency adjusts its focus to stay up with the modern workplace.
BLAW: In assessing 2017, what stood out to you as a key moment or development in EEOC's enforcement and litigation?
Meneghello: I was curious to see if the agency would perform an about-face on the issue of whether Title VII covers sexual orientation discrimination. Since 2015, when the EEOC issued its landmark administrative decision ruling that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII” [of the 1964 Civil Rights Act] in Baldwin v. Foxx, it has taken the lead on promoting this issue and defending the workplace rights of LGBTQ workers.
While that decision only impacted federal workers, it was seen by many as a source of inspiration to advance the cause at private workplaces, culminating in 2017’s Hively v. Ivy Tech case from the [U.S. Court of Appeals for the Seventh Circuit] where the first federal appeals court agreed with the agency’s position.
So when a similar case rose through the appellate channels at the [U.S. Court of Appeals for the Second Circuit] and the Department of Justice submitted a briefing arguing that Title VII did not cover sexual orientation, I don’t think I would have been surprised to see the EEOC change its tune under the new administration and follow the DOJ’s lead. But the EEOC’s briefing signaled that it stood strong on the issue, and so I would expect that same attitude to carry through in the new year.
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