The keynote speaker at today’s program (January 27, 2014) on Employment Practices Liability Insurance in New York City (sponsored by the American Conference Institute) was Constance Barker, one of the five Commissioners of the EEOC. We spoke on workplace class actions and EEOC litigation at today’s program, and Commissioner Barker presented her thoughts in the keynote address on what 2014 has in store for the EEOC and employers alike.
Commissioner Barker is a thoughtful and articulate government official with a broad spectrum of litigation experience before coming to the EEOC. As a result, like the old E.F. Hutton TV commercial, “when Constance Barker of the EEOC speaks, employers should listen….” In this respect, Commissioner Barker’s comments are important for all employers concerned with employment-related compliance efforts, as well as avoiding EEOC litigation.
Commissioner Barker acknowledged that the Obama Administration has used the EEOC’s enforcement litigation to “regulate” industries given the gridlock in Congress and its inability to pass worker-friendly legislation. Commissioner Barker stated that her perception is that with too much delegation of litigation decision-making in the hands of the Commission’s general counsel, 2014 will see extensive and aggressive litigation against employers. Commissioner Barker asserted that the delegation is “too broad,” and that the discretion of the EEOC’s general counsel over litigation decision-making should be reduced (so that the five Commissioners take a more active role n determining whether and what types of lawsuits will be brought against employers).
Commission Barker identified ADA issues, transgender rights, pregnancy discrimination, disparate impact discrimination cases, and discriminatory hiring screens at the top of the EEOC’s enforcement agenda. She urged employers to consider compliance efforts in reviewing their hiring and workforce data to ensure the lack of disparate impact in the treatment of protected-category applicants and employees.
Commissioner Barker also suggested that elections have consequences, and that the EEOC’s Strategic Enforcement Program (“SEP”) manifests how the Commission will direct its overall efforts (our past post on the SEP is here. She predicted that litigation will increase and that the EEOC’s systemic litigation program will take precedence over discrimination prevention efforts. Commissioner Barker predicted that hiring and promotional practices will be the key focus of the EEOC’s litigation efforts, and “bigger” rather than “smaller” lawsuits will be brought by the government.
Finally, Commissioner Barker opined that the Seventh Circuit’s ruling in EEOC v. Mach Mining (our take on it is here) was the most important case of the year. She called the ruling “surprising” in that it allows government counsel to give short shrift to pre-lawsuit conciliation obligations, and indicated that the Seventh Circuit’s decision is apt to get to the U.S. Supreme Court for review due to its importance for the litigation process.
Recently the Commission published its statistical breakdown of EEOC charges with retaliation, race, and sex discrimination charges leading the way. The EEOC also had the third highest number of discrimination charges filed in 2013 – a total of 93,727 charges – than ever before in its 49-year existence. In addition, the EEOC’s docket of systemic pattern or practice cases grew to over 20% of the Commission’s docket. And the EEOC recovered $372.1 million for claimants, the highest level of recoveries in the Commission’s history. All of this signals more cases and issues coming in 2014 for employers.
The bottom line – employers are well served to remain focused on compliance activities relevant to their workplace obligations.