By Christopher J. DeGroff, Sarah K. Bauman, and James P. Nasiri
Seyfarth Synopsis: Last year was one of change and recovery for the EEOC as a result of the pandemic and new leadership. With the new leadership regime and structural changes at the EEOC came an uptick in filings from FY 2021, with nearly half of those occurring in the month of September alone. Despite an anticipated busy year for 2022, this fiscal year closed with a strikingly low number of filings ,and leaves questions as to whether this filing drought will continue. However, with a Democratic majority inevitably to come, a generous budget increase (reported here), and several new strategic objectives planned for this FY 2023, a busy year may very well lie ahead.
As we previously reported here, FY 2020 experienced a significant downturn in filings as a result of leadership changes and the COVID-19 pandemic. This left us questioning as to the gravity of the impact this might have on subsequent years. Nevertheless, the EEOC quickly rebounded in FY 2021 with 114 total filings at year end (see here). Though this number was still significantly less than previous years (see here), almost half of FY 2021 filings were in the month of September alone, signaling a busy year for FY 2022. However, with a mere 94 filings at the time of publication of this blog post, FY 2022 did not live up to that case-filing trajectory. The EEOC has seen budget boosts in the last two years, and has signaled the hiring of numerous field staff, including lawyers. The pieces seemed to be in place for a more robust year-end filing spike once again in FY 2022, but the numbers do not show that.
This could be, in part, because the Commission is still led by a Republican majority, and the EEOC attorneys in the field are waiting for the composition to flip to the Democrats to increase the likelihood cases will receive a green light, or that the authority to file actions will once again be delegated to the field entirely. The EEOC has been mum on the topic, however. Recent political sparring may lend some insight. Notably, representatives have recently cried foul that EEOC attorneys are administratively withdrawing matters that have been voted down by the Commissioners so they may live another day (see here). Ultimately, there is no statistical or anecdotal suggestion that the EEOC has throttled down on enforcement or is more likely to settle cases. That suggests there is a queue of potential cases waiting to be filed.
Cases Filed By EEOC Districts
The most noticeable trend of this fiscal year is a return of the usual leaders of the pack: the Chicago, Miami, and Los Angeles District Offices, with 12, 8 and 8 filings, respectively. Chicago experienced a surprising dip in FY 2020 at only 3 filings, shot back up in 2021, but still lagged behind several other districts until this year. Similarly, the Los Angeles District, which historically has been a leading district for the EEOC, ended the year on top as well. The Miami District has also been very consistent, lodging at least 8 filings for five years in a row. Finally, the biggest surprise District in FY 2022 was Charlotte, which filed 10 merit cases this year after accounting for only 4 filings last year and only 1 filing in FY 2020.
Analysis Of The Types Of Lawsuits Filed In FY 2022
Each fiscal year we also analyze the types of lawsuits the EEOC files (i.e., the statutes and theories of discrimination implicated) to hone in on the focus of the EEOC’s current strategic priorities. Those numbers – when considered on a percentage basis – are in line with the numbers we have seen the last few years. The graphs below show the number of lawsuits filed according to the statute under which they were filed (Title VII, Americans With Disabilities Act, Pregnancy Discrimination Act, Equal Pay Act, and Age Discrimination in Employment Act) and, for Title VII cases, the theory of discrimination alleged.
When considered on a percentage basis, the distribution of cases filed by statute remained roughly consistent compared to FY 2021 and 2020. Title VII cases once again made up the majority of cases filed, accounting for 65% of all filings (on par with the 62% in 2021 and 60% in FY 2020). ADA cases also made up a significant percentage of the EEOC’s filings, totaling 29% this year, a moderate decline from 36% in 2021 and 30% in FY 2020. Notably, there were 7 age discrimination cases filed this year, a significant increase from last year’s single case.
March 2022 Budget Justification And FY 2021 Performance Report
On March 28, 2022, the EEOC released its third-annual Annual Performance Report (“APR”) for FY 2021, as well as its budget justification for FY 2023. The APR is an analysis of the EEOC’s litigation goals and performance results, and contains important data points regarding the EEOC’s changing strategic objectives and potential focus for future enforcement activity. The FY 2023 budget, on the other hand, outlines how the Commission intends to allocate funds in order to effectuate its goals via its proposed FY 2023 budget of $464,650,000.
In the APR, the EEOC declared that FY 2021 was a successful year for the Commission in terms of advancing its strategic objectives. Indeed, the EEOC secured more than $485 million in monetary relief for over 15,000 alleged victims of employment discrimination. By comparison, the EEOC recovered $535.5 million in FY 2020, $486 million in FY 2019, and $505 million in FY 2018.
Moving into 2023, the EEOC justifies its $464,650,000 budget request — a whopping $60 million increase from last year — based on advancing the strategic priorities for the fiscal year. Commissioner Burrows indicated that those priorities correlate with the Biden Administration’s call for a “whole-of-government approach to addressing systemic discrimination and advancing equal opportunity.” Perhaps this budget is exactly what the EEOC needs for a comeback from last year’s downturn.
Implications For Employers
Despite the EEOC’s relatively quiet FY 2022, employers should continue to keep a close eye on the Commission’s litigation trends. Specifically, given the EEOC’s notable budget increase and looming change in leadership, we still expect filing numbers to ramp up in the near future. Moreover, with the EEOC set to adopt a new strategic plan for FY 2023, the timing appears right for a new Democratic-led Commission to implement a new set of priorities and emphasize these priorities through litigation.
We will continue to monitor these changes closely and keep readers apprised of developments. And, as always, we will keep up-to-date on EEOC data amid the ever-changing political climate, and share lessons learned from FY 2022 to carry employers through the new year.