It looks like there could be big changes ahead for the Equal Employment Opportunity Commission (EEOC), according to a new vision for the agency staked out recently by Chairman Janet Dhillon. Her statements indicate the agency may be stepping back from pushing legal limits to aggressively plough new policy ground, which it sought to accomplish under Democrat control.
In her statement, Dhillon outlined five priority categories for the EEOC in 2020. They are:
● Continuing to provide excellent customer service to those who access the commission’s processes;
● Continuing to provide robust compliance assistance;
● Enhancing efforts to reach vulnerable workers;
● Strategically allocating the commission’s resources; and
● Continuing EEOC efforts to be a model workplace.
The list of priorities Dhillon issued on Feb. 4 could be seen as a good thing for employers, especially if the rest of the commission follows through, according to a group of attorneys from the law firm of Seyfarth Shaw.
Although the priority list states that the EEOC will continue to pursue its litigation agenda vigorously, Dhillon also comments that “litigation is truly a last resort and not an appropriate substitute for rule-making or legislation.” The lawyers point out, “Dhillon’s announcement also provides a welcome glimmer of hope for employers, particularly in its acknowledgment that litigation against employers should be ‘truly a last resort.’”
Her statement includes “a welcome and long-awaited signal that the EEOC finally may be starting to approach mediation and conciliation in a more meaningful way, rather than moving rapidly to enforcement in the federal courts,” state the Seyfarth Shaw attorneys. “Only time will tell if that priority translates into less litigation.”
They add that the priorities appear to favor greater concentration on the EEOC’s goal of continuing to grow its mediation program. She also appears to be making a renewed commitment to “meaningful and effective” conciliation efforts in all private sector cases, and to build strong partnerships with employers to provide education and outreach in the private, public and federal sectors.
In line with the EEOC’s 2017-21 Strategic Enforcement Plan, Dhillon’s 2020 priority list continues to focus on ensuring that vulnerable workers are protected. The agency typically has had a fairly expansive definition of vulnerable populations, but in recent years this tended to focus on migrant and immigrant workers and, possibly, a new and heightened awareness of national origin discrimination. The definition also refers to young women targeted for sexual harassment, particularly in the hospitality industry.
“The chair's priorities build on the EEOC’s proud legacy of civil rights accomplishments, and share the common theme of excellence, strategic innovation and collaboration,” the commission said when issuing the list. Dhillon stresses, “The EEOC will continue to be responsive to employees who raise claims of discrimination in the workplace.”
She adds, “During 2020, we will reexamine our efforts to reach vulnerable workers in our society and make adjustments as necessary to ensure that we are identifying, reaching and effectively serving—through outreach, enforcement and litigation—vulnerable workers throughout the nation’s workforce.”
Significantly, Dhillon says the commission will update its guidance and technical assistance documents so that they contain “a clear explanation of the law.” She acknowledges that unclear or out-of-date guidance from the commission raises the potential for confusion among the EEOC’s stakeholders and mentions that it may “exceed the commission’s statutory authority.”
This could represent acknowledgment of the EEOC’s recent troubles getting federal courts to buy into the agency’s interpretation of anti-discrimination laws, a problem that it faced repeatedly during the Obama era, including its attempted nationwide ban on criminal background checks, which was eventually struck down by federal courts.
EEOC’s Shrinking Budget
With a budget and workforce that has been steadily shrinking under President Trump, the EEOC faces some formidable challenges this year. Dhillon pledges to deploy better targeting and technology to overcome them and make sure the agency remains effective. The commission already has been successful in reducing the backlog of cases it inherited from the Obama-era agency, she points out.
In fact, EEOC staff has reduced the inventory of pending private sector charges by 12.1%—to only 43,580 charges—the lowest in 13 years, as evidence of prompt and efficient handling of charges, observes attorney Richard R. Meneghello of the Fisher Phillips law firm. He says another reason is the success of its mediation program, which has accomplished 6,394 successful mediations and achieved a satisfaction rate of 96.8% for the EEOC’s private sector mediation program.
Expect this effort to continue into 2020, with the commission focusing on reducing inventory levels of private and public sector charges and federal sector hearings and appeals. It also plans to increasingly embrace technology to assist in this effort and intends to apply data analytics to support data-driven decision–making for improving customer service.
In a separate report issued in late January, the EEOC said the total number of complaints it brought against employers was down in Fiscal Year 2019. However, the record dollar amounts that were collected should continue to give employers pause when it comes to accepting any kind of risk that they might run afoul of the agency.
A total of 72,675 charges were filed in 2019. Not only is this down from the 76,418 charges filed in 2018, but last year also saw the fewest number of charges filed for all fiscal years going back to 1997 (the second lowest, 75,428 charges, occurred in 2005).
Putting this number in perspective, the number of charges filed exceeded 80,000 per year in every year from FY 2007 until FY 2018, sometimes by wide margins, the Seyfarth Shaw attorneys note.
During 2019, the EEOC recovered more than $486 million for alleged discrimination victims. While this represents a 4% decrease from the $505 million collected in 2018, it is almost equal to the $484 million amount that was recovered during 2017.
The most common EEOC claim employers faced in 2019 involved allegations of retaliation against someone who made a complaint. Once again, these claims proved to be the most popular filed by workers. More than 39,000 retaliation claims were filed, making up nearly 54% of all claims filed in 2019 and continuing an 18-year stint of steady increases in retaliation claims.
The bulk of these stem from sexual harassment complaints. Employers were assessed $68.2 million in payouts in 2019 because of sexual harassment, exceeding by more than $10 million the previous record of $56.6 million for such complaints, which was set in 2018. This figure also is almost twice the total of $35 million in 2014. Recoveries for race-based charges also rose from $71.3 million in 2018 to $79.8 million last year.
The next-most numerous claims filed with the EEOC in 2019 were disability discrimination allegations, with a total of 24,238. This meant that disability complaints accounted for a third of all claims filed. Employers should act now to make sure they don’t end up on the wrong end of one of these claims, Meneghello urges. “You will want to ensure you and your managers have a firm grasp on your reasonable accommodation obligations and the interactive process to ensure you don’t fall victim to such a claim in 2020.”
Another category of claims that is definitely growing involves LGBT discrimination. When the EEOC started tracking LGBT-based discrimination claims in 2013, the numbers were tiny, with only 808 claims were filed, and under a million dollars recovered from employers. Last year saw 1,868 LGBT claims filed and $7 million recovered, an amount that is a 677% dollar rise in only six years.
With the Supreme Court set to rule on the validity of sexual orientation and gender identity claims under Title VII of the Civil Rights Act, and an ever-increasing number of states expanding their LGBT anti-discrimination laws, Meneghello expects these figures to rise again in 2020.
Employers also should be careful to make sure they don’t become targets of any kind of EEOC enforcement activity, warn the Seyfarth Shaw attorneys. “Despite the dips in the overall number of charges, the EEOC’s enforcement efforts show no sign of waning. Employers should treat these statistics as an early warning system that shows where the commission’s enforcement efforts may be heading next. To that end, it is notable that retaliation and disability discrimination issues are firmly in the forefront.”
Meneghello adds, “In the wake of these statistics, you should be more aware than ever of the importance of a positive workplace culture and the need to eliminate sexual harassment in the workplace.”
