The Equal Employment Opportunity Commission (EEOC) was very busy in fiscal year (FY) 2012. The agency reported that it finished the year with record-high monetary recoveries for victims of discrimination.
Historic monetary recoveries
The EEOC issued its first Performance and Accountability Report compiled under the standards of its new Strategic Plan, which went into effect in March 2012. The agency reported that in 2012, it received 99,412 private- sector discrimination charges, resolved 111,139 charges, and collected a record $365.4 million through administrative enforcement. Administrative enforcement includes mediation, settlements, withdrawals with benefits, and conciliation.
The EEOC recovered an additional $44.2 million through its litigation program.
New Strategic Plan
The EEOC noted that the Strategic Plan has three objectives: strategic law enforcement, education and outreach, and efficiently serving the public. Strategic law enforcement resulted in the record monetary recoveries outlined above.
Under the rubric of efficiently serving the public, the EEOC noted the reduction in pending unresolved charges. As of September 30, 2012, the charge backlog was 70,139, a 10 percent decrease from 2011. The EEOC pointed out that this reduction is particularly notable because it comes at a time of record charge receipts. For the third consecutive year, the agency received nearly 100,000 charges.
In pursuing education and outreach efforts, EEOC offices participated in 3,992 no-cost educational, training, and outreach events, reportedly reaching 318,838 people in FY 2012. The EEOC reported that its efforts targeted small businesses, vulnerable workers, and underserved geographic areas and communities and emphasized new statutory responsibilities, issues related to migrant workers, human trafficking, and youth workers, and equal pay in the workplace.
Current EEOC litigation priorities
The EEOC reportedly will focus enforcement resources on cases involving the following types of discrimination allegations or groups:
- Systemic discrimination, particularly in recruitment and hiring;
- Immigrant, migrant, or other vulnerable workers;
- People covered by the ADA Amendments Act (ADAAA);
- Members of the lesbian, gay, bisexual, and transgender community;
- Curtailment of employees’ job rights; and
Systemic discrimination a top priority
Systemic discrimination has become a focus for the EEOC. The agency has reported that a full 20 percent of the cases on its litigation docket are systemic cases. It’s important to understand how the EEOC defines systemic discrimination and be mindful of practices that might put your company at risk.
The EEOC defines systemic discrimination as “discrimination [that] involves a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.” Thus, the agency will be looking to see whether a practice, policy, or action that led to a claim by a single employee might have a wider impact on a broader group of employees and support a larger claim by more employees.
The EEOC provides the following examples of systemic discrimination:
- Discriminatory barriers in recruitment and hiring;
- Discriminatorily restricted access to management trainee programs and high-level jobs;
- Exclusion of qualified women from traditionally male-dominated fields;
- Disability discrimination such as unlawful preemployment inquiries;
- Compliance with customer preferences that result in discriminatory placement or assignment.
To avoid the potential for a systemic discrimination charge, review your policies and practices for recruiting, hiring, promoting, training, and retaining employees to ensure they aren’t inadvertently having a discriminatory impact on individual workers or groups of employees.
The EEOC’s press release regarding its Strategic Plan and FY 2012 statistics is available online at www.eeoc.gov/eeoc/newsroom/release/11-19-12.cfm.
Edward Sisson is an attorney with Sulloway & Hollis in the firm’s Concord, New Hampshire, office. He serves clients on a wide range of matters in both the business and litigation departments. Prior to joining the firm, Mr. Sisson served as a Surface Warfare Officer in the United States Navy. Sisson may be contacted at esisson@sulloway.com.