Seyfarth Synopsis: On January 19, 2020, the EEOC released its second-ever Annual Performance Report (“APR”) for Fiscal Year 2020 (see here). In essence, it is a report card on the Commission’s activities, including its record relative to enforcement litigation. That said, 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 future targets of heightened enforcement activity. It is a “must read” for all employers.
This is only the second 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 last year, the PAR was bifurcated into two separate reports. The first report was published in November 2020, entitled “Fiscal Year 2020 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.
Significant Drop In Total Filings And Systemic Case Filings
The APR reports that the EEOC filed 93 merits lawsuits, including 69 suits on behalf of individuals, 12 non-systemic suits with multiple victims, and 13 systemic suits in FY 2020. This is down from 144 merits lawsuits filed in FY 2019, and 199 merits lawsuits filed in FY 2018.
“Systemic” suits are defined as lawsuits having “a broad impact on an industry, company or geographic area.” In FY 2019, the Commission filed 17 systemic suits; in FY 2018, it filed 37 systemic suits; in FY 2017 it filed 30; and in FY 2016 it filed 18. The 13 that were filed in FY 2020 is therefore another drop as compared to previous years. Systemic lawsuits accounted for 13.9% of all merits suits filed in FY 2020, and 20.3% of all merits suits on the EEOC’s active docket (a total of 41 systemic lawsuits). The EEOC obtained relief for 25,000 victims of systemic discrimination, amounting to $69.9 million.
Sex Discrimination And Harassment Continue To Dominate The EEOC’s Filings
Despite another drop in total number of filings, the Commission continued its multi-year focus on sex-based discrimination, especially harassment claims. The APR reports that merits filings broke down along the following lines: sex (37), disability (29), retaliation (26), race (13), religion (5), age (7), and national origin (4). Further, the EEOC filed 33 lawsuits related to workplace harassment in FY 2020, including 24 cases involving claims of hostile work environment based on sex, eight involving claims of hostile work environment based on race, and one involving claims of hostile work environment based on national origin. Twenty harassment suits were individual cases, 12 were class cases, and one was a systemic case. Overall, over one-third of all lawsuits filed by the Commission in FY 2020 included allegations of harassment.
The Commission also resolved 62 harassment suits in FY 2020, recovering around $84.4 million for 902 victims of harassment through the EEOC’s litigation program.
The Commission’s increased efforts in both enforcement and prevention demonstrate its lasting commitment to addressing sexual harassment and sex discrimination in the workplace.
A Pivot To Use Of Litigation As A “Last Resort” And ADR Is Now 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 shift towards heightened mediation efforts in place of litigation (read more here). The EEOC has also taken steps to significantly limit the litigation authority of its General Counsel (we reported on the EEOC’s recent approval of this change here). The APR echoed the Commission’s 2020 priorities by continuing to focus on its Alternative Dispute Resolution (“ADR”) efforts. During FY 2020, the Commission conducted 6,272 mediations, resulting in $156.6 million in relief to charging parties. Further, 766 federal sector mediations were conducted, reducing the inventory of federal sector disputes. Overall, approximately $333.2 million in relief was recovered through mediation, conciliation, and settlements.
Implications For Employers
The APR and the EEOC’s related publications provide practical insights into the Commission’s priorities amid an changing political climate. Those publications consistently show that combatting workplace harassment and discrimination against vulnerable workers remain top priorities for the agency. Moreover, the Commission’s APR report card reflects the results of the EEOC’s commitment to using litigation as a last resort and its renewed focus on its ADR programs.
The ongoing changes at the Commission are a must-watch for employers as the EEOC continues in its 2021 fiscal year, and we will be tracking the latest developments here.