By Christopher DeGroff, Gerald L. Maatman, Jr., and Lily M. Strumwasser
“Here we go again.” It is the collective groan heard from employers across the country as they braced for the annual EEOC’s fiscal-year-end filing campaign. With 48 EEOC-initiated lawsuits filed in just the last 30 days, employers were understandably concerned. But when the EEOC’s 2013 fiscal year closed yesterday with a total of 134 lawsuits filed, and the dust settled, we saw a picture emerge about how the EEOC targeted employers in its enforcement efforts this year, and gain insight into what’s to come.
A Last Minute Rush – Again
The EEOC traditionally launches large salvos of federal court complaints across the country in the waning weeks of its fiscal year (ending September 30th). In FY 2011, the EEOC filed an astonishing 175 lawsuits in the last eight weeks of its 2011 fiscal year alone. As we reported here last year, the EEOC again revved its engine in August and September of 2012 and filed 67 of its 122 lawsuits. FY 2013 was no different, with 48 of its 134 filed in the last two months of the year – 11 today alone. Consider the graph below, capturing the month-to-month filing statistics for FY 2013.
EEOC Cases Filed By Month – FY 2013
Earlier this year, the EEOC suggested that employers would probably not see a year-end rush to the finish line as in past years, and members of the Commission itself reportedly bristle at the phenomenon. But the statistics show that the year-end rush is alive and well for yet another year.
It is possible that the year-end rush could have been even more pronounced, but the looming government shutdown may have pushed certain Districts to take a “wait and see” approach to litigation ready to go but not yet filed. Indeed, the EEOC announced a shut-down plan on September 27, 2013 that called for all non-essential activity to stop in the event of a shutdown. It is possible that we will see a “mini-spike” of cases filed early in the EEOC’s FY 2014 if, in fact, there are a stockpile of cases awaiting more certain economic footing.
That said, the overall number of lawsuits stayed roughly stable this year, compared to the high-water mark of filings of 261 in FY 2011. Recent, and very public, litigation setbacks (discussed here, here, and here) almost certainly play a part in the EEOC’s wariness of using a “shotgun” approach to litigation.
Location, Location, Location…Is Still Critical
The 134 EEOC lawsuits this year were not distributed around the country equally – not by a long shot. Where you do business and which of the agency’s 15 Districts had picked up the cause had a big impact on an employer’s likelihood of being sued by the EEOC in FY 2013, as this graphic below shows:
EEOC Cases Filed By District – FY 2013
There are some remarkable swings in the number of filings from District to District that are not driven simply by population metrics. Indeed, the Charlotte, Philadelphia, and Chicago Districts alone drove a stunning 45% of the national litigation in 2013. Although Chicago has traditionally shown aggressive filings, Philadelphia and Charlotte have not, and emerge on the stage as Districts to watch in the coming fiscal year.
One important metric that must be considered whenever one analyzes EEOC activity: the agency’s budget. The resources the EEOC can draw upon play an integral part in how many cases the agency can file and, bluntly, just how well it can litigate those cases. In FY 2013 the EEOC was forced to retreat from its “all in” systemic litigation focus – the majority of the EEOC cases filed this year involved just a single “aggrieved individual.” Class litigation is expensive, and the FY 2011 high water mark of cases is unlikely to repeat anytime soon, even under an arguably EEOC-friendly administration.
Of course, the question is not just the number and location of EEOC lawsuits – what kinds of cases the EEOC is brining is critically important.
Review Of The EEOC’s National Priorities
The driving force to the EEOC’s 2013 litigation strategy was expected to be its Strategic Enforcement Plan. As we previously reported, the EEOC’s Strategic Enforcement Plan was to function as the blueprint for the Commission’s enforcement activity, and was described in detail in previous posts. The EEOC identified six national enforcement priorities in the SEP:
1. Eliminating barriers in recruitment and hiring;
2. Protecting immigrant, migrant, and other vulnerable workers;
3. Addressing emerging and developing issues;
4. Enforcing equal pay laws;
5. Preserving access to the legal system; and
6. Preventing harassment through systemic enforcement and targeted outreach.
But how did those priorities play out in practice, in an agency with highly decentralized – and even competing – District leadership?
Substance Of The EEOC’s FY 2013 Filings
We kept close tabs not only on the number of cases filed, but also what theories were pursued. Here is a snapshot of the 2013 filings:
EEOC Cases Filed By All Discrimination Types – FY 2013
Interestingly, disability cases were the most often filed EEOC lawsuit in FY 2013. The ADA has been a traditional favorite for the EEOC (see our blog posts here, here, and here), but not mentioned among the “big 6” national priorities. The Americans With Disabilities Act Amendment of 2008 (“ADAAA”) broadened the scope of who is “disabled” under the law, and effectively eviscerated one of the primary employer defenses to disability claims, i.e., that an employee does not have a legally protected disability. The EEOC has made clear that enforcing ADA claims is a key goal, and the number of ADA cases in FY 2013 demonstrates that goal is becoming a reality. Religion also saw a strong showing in FY 2013, but again was not one of the national priorities. Another area of interest for the EEOC was its focus on alleged discrimination against pregnant women. Click here for our blog posting on the recent string of pregnancy discrimination lawsuits the EEOC filed.
Employers are still wise to focus on the national priorities, but the 2013 filings are a chilling reminder that the EEOC has unpublicized agenda items that still can translate to costly litigation.
But what of some of those “national priorities” – drove the litigation? As for eliminating barriers in recruitment and hiring – this was a transformative year for the EEOC. The Commission’s pursuit of background checking suits was relentless. In June alone, the EEOC filed back-to-back suits against employers for use of criminal background checks. Despite the Attorney’ General’s criticism of what they called the EEOC’s “misguided” position on criminal background screens, the EEOC stood its ground and kept swinging. Most recently, the EEOC received a scathing opinion in EEOC v. Freeman, No 09-CV-2573 (D. Md. Aug. 9, 2013), where the court dismissed the EEOC’s nationwide pattern or practice lawsuit that alleged that Freeman unlawfully relied on credit and criminal background checks that caused a disparate impact against African American, Hispanic, and male job applicants.
Employers now have some insight about what the EEOC meant in its Strategic Plan by indicating it intended to focus on “emerging issues.” In FY 2013, the EEOC pursued a number of Genetic Information Nondiscrimination Act (GINA) claims (the first of their kind), along with a discrimination lawsuit on the basis of an employee’s inability to provide a urine sample, allegations that firing a woman for breast pumping is a form of sex discrimination, and pursuit of an employer for allegedly not hiring an applicant due to positive HIV status. The EEOC’s pursuit of these novel areas helped the Commission attract and maintain media attention, an element the EEOC admits is important to pursuing its agenda.
Equal pay was also an important topic for the EEOC in FY 2013. Notably, on June 10, 2013, the White House Equal Pay Task Force announced the administration’s commitment to “closing the gap – once and for all.” In its “Fifty Years After The Equal Pay Act” publication, the White House announced that 2013 and beyond would include a focus on a “broader framework of practice that may limit the full economic participation of women workers.” President Obama’s focus on pay equity has echoed throughout the EEOC. In FY 2013, the EEOC filed 4 EPA claims. Click here for our advice on how to ensure early detection and intervention of equal pay issues to reduce and/or eliminate employer’s risk.
Insight For Employers
One thing is clear: the year-end rush is a phenomenon that is here to stay, regardless of what the agency may say about the trend. We have also learned that the EEOC’s articulated national priorities, although important, are not going to provide employers with all of the focus areas where the EEOC may sue. Comprehensive practices and policy audits are always advisable to detect and cure any EEO issues that may attract the government’s attention. The EEOC’s tendency to focus on specific geographic areas is also notable, but leaves us asking if (like those employers in the Charlotte District) what will be the next hot District? We will be watching – and reporting.
With the 2013 fiscal year wrapping up just minutes from now, there is still much data to analyze and trends to tease from those numbers. The EEOC’s official published statistics typically are released in November, and we will have even more information then. Readers should stay tuned, as we will continue to deliver insights and guidance as the foggy picture becomes clearer.
Readers can also find this post on our EEOC Countdown blog here.