By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Ala Salameh

Seyfarth Synopsis:  On February 10, 2020, the EEOC released its first-ever Annual Performance Report (“APR”) for Fiscal Year 2019 (see here). The APR is an analysis of the EEOC’s litigation goals and performance results, and contains important clues to the EEOC’s changing strategic objectives and potential future targets of heightened enforcement activity. It is a “must read” for all employers.

This is the first year that the EEOC has published an Annual Performance Report. The EEOC previously published one annual Performance Accountability Report (“PAR”) shortly after the end of its fiscal year. Starting this year, the PAR has been bifurcated into two separate reports. The first report was published in November 2019, entitled “Fiscal Year 2019 Agency Financial Report” (“AFR”). It was focused on the Commission’s financial health, overall initiatives, and objectives (see more here). The second report is this month’s publication, the APR, which discusses the agency’s Strategic Plan and performance results. The APR is an important tool for employers to gauge the Commission’s enforcement priorities and trends.

The APR is organized around the three Strategic Objectives outlined in the EEOC’s Strategic Plan for Fiscal Years 2018-2022 (“Strategic Plan”). The Strategic Plan should not to be confused with the EEOC’s Strategic Enforcement Plan – which specifically deals with litigation and other enforcement mechanisms. Those enforcement issues encompass just one of the three strategic objectives outlined in the Strategic Plan. The other two objectives are: (1) preventing employment discrimination and promoting inclusive workplaces through education and outreach; and (2) achieving organizational excellence increased its focus on robust outreach to vulnerable workers.

Consistent with these last two objectives, the APR reports that the EEOC is making new efforts to serve as a model workplace by revamping its own inclusion and diversity program reinforced by new technology, and has increased its focus on robust outreach to vulnerable workers.

Significant Drop In Total Filings And Systemic Case Filings

The APR reports that the EEOC filed 144 merits lawsuits in FY 2019, a decrease from the 199 merits lawsuits it filed in FY 2018. Among this array of filings were 100 lawsuits filed on behalf of individuals, 27 non-systemic lawsuits with multiple victims, and 17 systemic lawsuits.

“Systemic” suits are defined as lawsuits having “a broad impact on an industry, company or geographic area.” Between FY 2016 and FY 2018 the EEOC more than doubled its inventory of systemic lawsuits. During FY 2018, the Commission filed 37 systemic suits; in FY 2017 it filed 30; and in FY 2016 it filed 18. The 17 that were filed in FY 2019 is therefore a significant drop as compared to the prior two years and is even below the low FY 2016 number. Systemic lawsuits accounted for 12% of all merits suits filed in FY 2019, and 21.4 percent of all merits suits on the EEOC’s active docket (a total of 60 systemic lawsuits). The EEOC obtained relief for 2,022 victims of systemic discrimination, amounting to $22.8 million.

The Continued Importance Of The #MeToo Movement

Despite the drop in total number of filings, the Commission maintained its focus on sex-based discrimination, especially harassment and hostile work environment claims. The APR reports that sexual harassment lawsuits alone comprised roughly 43% of all merits suits filed in FY 2019. The EEOC filed 48 lawsuits pertaining to workplace harassment, of which roughly 70% arose out of hostile work environment claims based on sex.

The Commission has also teamed up with third-party organizations and other federal agencies to collect data and require reporting of sexual harassment, as well as maintaining its commitment to address ongoing issues. In terms of preventative efforts, the EEOC participated in over 700 partner activities with advocacy and business groups. Among the newest collaborations was a partnership with the National Science Foundation, which recently started requiring applicants to report and address sexual harassment as a condition of their grant awards. The Commission reported that it is also leveraging social media through its pilot “You’re Hired” campaign on Instagram to provide information about discrimination and sexual harassment to youth in summer jobs.

The Commission’s increased efforts in both enforcement and prevention demonstrate its lasting commitment to addressing sexual harassment and sex discrimination in the workplace.

Litigation Is A “Last Resort” And ADR Is A Heightened Priority

On February 4, 2020, EEOC Chair Janet Dhillon released the Commission’s 2020 priorities indicating that “litigation is truly a last resort,” signaling a potential shift towards heightened mediation efforts in place of litigation (read more here). The APR echoed the Commission’s 2020 priorities by focusing on its Alternative Dispute Resolution (“ADR”) efforts. During FY 2019, the Commission conducted 8,899 mediations, resulting in nearly $160 million in relief to charging parties. Further, 1,145 federal sector mediations were conducted, significantly reducing the inventory of federal sector disputes. Overall, 96.8% of those who participated in the Commission’s ADR program reported that they would pursue EEOC mediation for future charges filed.

The EEOC has also continued its efforts to increase employer participation in mediation. It held 357 employer ADR events across field offices and saw its respondent participation rate rise to 30.7% in FY 2019 from 27.6% in the prior year. The EEOC also continues to promote voluntary compliance through its conciliation program. The APR reports that the percentage of successful conciliations has risen from 27% in FY 2010 to 40% in FY 2019. For systemic charges, the success rate rose to 56% in FY 2019, compared to 46% in FY 2018.

Implications For Employers

The APR and the EEOC’s related publications provide practical insights into the Commission’s priorities amid an ever-changing social climate. Those publications consistently show that combatting sexual harassment and discrimination against vulnerable workers remain top priorities for the agency.

Moreover, while the Commission’s efforts and announcements appear to support the Commission’s reported goal of focusing more heavily on ADR rather than litigation, only time will tell if this trend will bear out. It remained true that the Commission pursued its mission with zeal during those parts of the year when it was acting with a quorum of Commissioners. Our year-end analysis and the EEOC’s own APR report card reflect relatively strong numbers in filings and recoveries in FY 2019, despite the loss of quorum during a significant part of the year.

Readers can also find this post on our EEOC Countdown blog here.

By Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On February 4, 2020, EEOC Chair Janet Dhillon’s released a list of priorities for the Commission in 2020. While the priorities primarily focus on continuing to seek justice for workers raising claims of discrimination, Chair Dhillon’s announcement also provides a welcome glimmer of hope for employers, particularly in its acknowledgment that litigation against employers should be “truly a last resort.” The list of priorities is a must read for all employers.

On February 4, 2020, EEOC Chair Janet Dhillon issued a media statement announcing the Commission’s priorities for 2020. Those priorities can be found here. They should be viewed and considered in conjunction with the EEOC’s 2017-2021 Strategic Enforcement Plan, which was promulgated by the EEOC in October 2016 and can be found here. However, the February 4 announcement appears to signal something of a shift for the agency.

In a short and concise statement, Chair Dhillon outlined five priority categories for the EEOC in 2020. These categories include: (1) continuing to provide excellent customer service to those who access the Commission’s processes; (2) continuing to provide robust compliance assistance; (3) enhancing efforts to reach vulnerable workers; (4) strategically allocating the Commission’s resources; and (5) continuing the Commission’s efforts to be a model workplace.

A Continued Focus On Reaching And Protecting Vulnerable Workers

In line with the EEOC’s 2017-2021 Strategic Enforcement Plan, Chair Dhillon’s 2020 priority list continues to focus on ensuring that vulnerable workers are protected from civil rights violations and discrimination. The 2020 priorities emphasize providing outreach to and enforcing the rights of vulnerable populations in the workplace. The EEOC has typically taken a fairly expansive definition of vulnerable populations, but in recent years (as reported by in our previous posts here), this priority has tended to focus on migrant and immigrant workers and, possibly, a new and heightened awareness of national origin discrimination. In recent years, this vulnerable population also has included young women targeted by sexual harassment, particularly in the hospitality industry.

A Renewed Emphasis On Outreach, Conciliation, And Mediation Ahead Of Litigation

But in what will hopefully be a promising trend for employers, the 2020 priorities appear to signal a shift away from the Commission’s litigation efforts in favor of greater concentration on the EEOC’s goals to continue to build its mediation program in the private and federal sectors, to make a renewed commitment to “meaningful and effective” conciliation efforts in all private sector cases, and to build strong partnerships with employers to provide education and outreach in the private, public, and federal sectors.

Although the Chair’s priority list acknowledges that the Commission will continue to pursue its litigation agenda vigorously, it auspiciously opines that “litigation is truly a last resort and not an appropriate substitute for rule-making or legislation.” This statement could be a glimmer of hope for employers that the EEOC will take a step back from what some have called a “shoot first and aim later” litigation strategy.

Ongoing Efforts To Decrease The Charge Backlog

Over the past few years, the EEOC has made significant efforts to decrease its backlog of filed charges. Chair Dhillon’s priorities indicate that those efforts will continue into 2020, as the EEOC focuses on reducing inventory levels of private and public sector charges and federal sector hearings and appeals, embracing technology, and using data analytics to help data-driven decision–making to improve customer service (an accounting of the filed charge statistics for 2019 can be found here).

An Aim To Reduce Confusion Related To EEOC Guidance And Enforcement

In an effort to help employers comply with civil rights laws, Chair Dhillon’s priority list indicates that the Commission will work in 2020 to update its guidance and technical assistance documents so that they contain “a clear explanation of the law.” The Chair’s list acknowledges that unclear or out-of-date guidance from the Commission raises the potential for confusion among the EEOC’s stakeholders. The list also mentions that such guidance may “exceed the Commission’s statutory authority,” which could be a tacit acknowledgment of the EEOC’s recent troubles getting the federal courts to buy into the agency’s interpretation of the federal anti-discrimination laws. (For example, our discussion of the Fifth Circuit’s rejection of the EEOC’s criminal history guidance is here.)

Implications For Employers

While Chair Dhillon’s 2020 priorities clearly emphasize improving customer service for workers filing charges of discrimination and reaching vulnerable populations in the workplace, they also include a welcome and long-awaited signal that the EEOC finally may be starting to approach mediation and conciliation in a more meaningful way, rather than moving rapidly to enforcement in the federal courts. Only time will tell if that priority translates into less litigation.