HR Management & Compliance

Insights into the Latest EEOC Developments

Every HR professional knows to tread carefully around the Equal Employment Opportunity Commission (EEOC). Littler releases a report every year to explore the deep inner workings of the EEOC and what it all means. Today I am joined by Barry Hartstein to discuss their report, Annual Report on EEOC Developments—Fiscal Year 2018.

EEOCHR Daily Advisor: I understand that this is your 8th annual review of EEOC developments. What would the number one takeaway from this report be for HR professionals?

Barry Hartstein: This annual report is designed as a comprehensive review of the EEOC’s regulatory, charge and litigation activities. It can be a critical resource in understanding the EEOC’s areas of focus, including emerging trends, to assist employers in their EEO compliance activities. As an example, the most litigation by the agency in the past five years has been ADA litigation. This should be a reminder that care should be taken in investigating and responding to such charges in order to minimize the risk of a  cause finding and/or litigation by the EEOC.

HR Daily Advisor: In your report you found that the staff at the EEOC had declined 5% by the end of 2018. I understand that such losses can have a large impact for the EEOC including a loss of institutional experience and means a lot of catchup for new employees. What impact might this have on employers in 2019?

Barry Hartstein: The agency has numerous options at its disposal in conducting its investigation in response to a charge, including requests for information, site visits, telephone interviews, and fact-finding sessions. While the agency has worked on training its new staff, there certainly is the concern of newer investigators, in trying to “prove themselves” to their superiors, they may engage in overreaching, such as making overbroad requests for information and more frequent requests for on-site visits and requested interviews. More importantly, while EEOC investigators are supposed to be neutral in the investigation process, being a skilled interviewer in gathering facts takes time. Newer investigators may too easily come in with the presumption that discrimination occurred based on a charge and that may impact on their approach to the investigation.

HR Daily Advisor: According to your findings, only two of the five commission slots are filled. How does that influence the overall strategy of the EEOC?

Barry Hartstein: The agency is at a standstill in various ways during this interim period. As referenced below, per the EEOC’s current Strategic Enforcement Plan, despite the delegation of authority for a broad range of day to day litigation, there are key litigation matters that require a vote by the Commission, such as cases requiring a significant expenditure of funds (e.g., systemic, pattern or practice or Commissioner charge cases or non-EEOC appeals cases in which the Commission participates as amicus curiae). Otherwise, no actions on the regulatory agenda can move forward in the absence of a quorum.

Excerpt from EEOC’s Strategic Enforcement Plan:   See https://www.eeoc.gov/eeoc/plan/sep-2017.cfm

“…the Commission reaffirms the delegation to the General Counsel to decide to commence or intervene in litigation in all cases except the following:

i.        Cases that may involve a major expenditure of agency resources, including staffing and staff time, and/or expenses associated with extensive discovery or expert witnesses. This category is expected to include many systemic, pattern-or-practice or Commissioner charge cases;

ii.        Cases that present issues in a developing area of law where the Commission has not adopted a position through regulation, policy guidance, Commission decision, or compliance manuals, or where the Commission has only recently adopted a position;

iii.        Cases that the General Counsel reasonably believes to be appropriate for submission for Commission consideration, for example, because of their likelihood for public controversy or otherwise;

iv.        All recommendations in favor of Commission participation as amicus curiae.

HR Daily Advisor: Your report finds that the Commission was out in front of the #MeToo movement. Can you elaborate, and will that continue?

Barry Hartstein: The EEOC has been in the forefront of addressing harassment issues for many years. As an example, one of the most significant sexual harassment settlements is a Consent Decree entered into in June 1998 with an auto manufacturer, in which there was a $34 million settlement, which still stands out as one of the most significant settlements in this area. More recently, even prior to the Harvey Weinstein matter and chain of events that followed, in January 2015, the EEOC set up the Select Task Force on the Study of Harassment in the Workplace, and its findings and recommendations on preventive efforts that should be taken by employers was issued in June 2016, which clearly preceded the October 2017 revelations involving Harvey Weinstein.

HR Daily Advisor: What are some of the lesser known employment matters that were a focus in 2018, and will they continue to be in 2019?

Barry Hartstein: The most significant issue is that is not focused on by employers is that over the past several years, over 40% of all lawsuits filed by the EEOC were ADA lawsuits, and based on this trend, employers should be expect this trend to continue. Close attention needs to be placed on ADA issues, including documenting an employer’s good-faith efforts engaging in the interactive process and making reasonable accommodations, because employers need to anticipate that if the situation deteriorates and leads to the resignation or termination of the impacted employee, the employer will need to defend its actions. The EEOC will continue to carefully review accommodation issues.

Noteworthy ADA Litigation Statistics:

•      84 ADA suits based  199 “merits lawsuits filed by EEOC in FY 2018 – 42% of all lawsuits

•      75 ADA Lawsuits based on 184  lawsuits filed by EEOC in FY 2017 – 41% of all lawsuits

•      35 ADA  lawsuits based on 86 lawsuits filed by EEOC in FY 2016 – 40.6% of all lawsuits

•      53  ADA Lawsuits based on 142 lawsuits filed by EEOC in FY 2015 – 37% of all lawsuits

•      49 ADA lawsuits based on 133 lawsuits filed by EEOC in FY 2014 – 36.8% of all lawsuits