By Gerald L. Maatman, Jr., Christopher J. DeGroff, and Alex W. Karasik

Seyfarth Synopsis:  On November 16, 2021, the EEOC released its Agency Financial Report (“AFR”) for Fiscal Year 2021. The AFR is a data compilation regarding the EEOC’s financial health, initiatives, and guiding principles. This year’s edition marks the third version of the publication, following the release of the inaugural AFR in FY 2019.

The AFR is a “must read” for employers. It is an important guide to how the EEOC spent its budget in FY 2021, thereby providing a useful roadmap for the Commission’s strategic direction and litigation enforcement priorities in FY 2022. 

A Decline In Monetary Recoveries

As we previously reported here, FY 2021 represented a return to form for the EEOC following a year of transition, stemming from leadership changes and the COVID-19 pandemic.  While lawsuit filings surged, especially at the end of the fiscal year in September, the EEOC’s monetary recoveries dropped by $51 million, from a record setting $534.4 million in FY 2020 to approximately $484 million in FY 2021.  This more closely resembled the $486 million recovered in FY 2019.

However, the amount recovered through mediations, conciliations, and settlements increased from $333.2 million in FY 2020 to approximately $350.7 million in FY 2021, nearly mirroring the $354 million total recovered in FY 2019.  The $350.7 million total was recovered on behalf of 11,067 victims of employment discrimination in the private sector and state and local governments.  The EEOC also announced that more than $100 million was recovered on behalf of 2,169 federal employees and applicants.  The AFR also noted that the EEOC recovered $34 million for 1,920 individuals as a direct result of litigation resolutions, a sharp decline from the $106 million total in FY 2020 and $39.1 million in FY 2019.

Prioritizing Alternative Dispute Resolution

With the pandemic lingering into FY 2021, the EEOC continued its steadfast commitment to Alternative Dispute Resolution (“ADR”) programs, including virtual mediation and conciliation proceedings.  In FY 2021, the EEOC successfully resolved 41.1% of its conciliations, and 51.7% of those that were resolved included claims relative to involved one or more Strategic Enforcement Plan priority areas.  The EEOC conducted 6,644 private sector mediations, resulting in $176.6 million in benefits to charging parties.  This represented a significant increase from the $156.6 million that was recovered in mediations during FY 2020.  In addition, 639 federal sector mediation resulted in $8.4 million in recoveries for federal employees and applicants.

Other Key Developments And Initiatives

After the EEOC’s backlog of pending charges was reduced in FY 2019 and FY 2020, the backlog endured a slight 2.0% increase in FY 2021, going from 41,951 charges to 42,811 charges. Nonetheless, the Commission frequently communicated with the workforce in FY 2021, handling more than 383,500 calls from the public and more than 52,000 e-mails, a 40% increase in volume over FY 2020.  The EEOC reduced federal sector hearings inventory for the fourth consecutive year, as well as reducing the number of federal sector appeals that were more than 500 days old.

In line with the workforce’s rapid technological evolution, the EEOC made substantial technological improvements in FY 2021.  The Commission upgraded its data collection and analytics tools, which the EEOC indicated will facilitate data-driven decision making.  Two new web-enabled tools were launched, including “EEOC Explore” and “Annual Report Dashboard,” which are designed to provide user transparency into EEOC enforcement data and statistics.

Finally, despite pandemic-related restrictions for live events, the EEOC was highly active in the employment community.  The Commission conducted more than 2,325 outreach events for more than 254,830 individuals nationwide.  Those included 313 outreach events related to COVID-19, which reached 38,827 individuals.  In addition, the EEOC hosted 186 outreach event related to LGBTQ+ matters, which had 19,208 attendees.  Partnering with organizations that work with vulnerable workers, the EEOC conducted 649 outreach events that reached 105,943 attendees.  The EEOC also held its first-evert, all virtual public hearing to explore workplace civil rights implications of the COVID-19 pandemic, which was attended by 2,000 people.

Implications For Employers

As the workforce has adapted to the pandemic, the EEOC reciprocated this transition by continuing to enhance its virtual ADR program and use of data-driven analytics to guide its processes.  The AFR’s data illustrates that while overall monetary recoveries declined in FY 2021, the EEOC is getting back on track, and gearing up for an active 2022 and beyond.

We will continue to monitor trends and developments in the EEOC’s mission, including the types of cases that are filed and how the agency chooses to fight those lawsuits in court. As we do every year, we look forward to providing you an in-depth look at those trends and developments in the months to come.