The EEOC’s fiscal year just ended and now it is releasing news of its successes. Although this is a look back, it gives us all insight as to what is important to the Commission and, perhaps, how we can stay off its radar. While the official report is being released today, here are some highlights.
More Efficiency, Quicker Resolution?
The EEOC is working on being more efficient and thinks it is making some progress. First, offices are prioritizing charges to focus on meritorious charges and disposing of charges more quickly. It received more than 84,000 charges of discrimination in the last fiscal year and, through its improved efficiencies, reduced its backlog to the lowest it has been in 10 years.
Another innovation is the new EEOC Public Portal that was just launched nationwide. This appears to be the flip side of the employers’ Respondent Portal that we have been using for the last few years. Employees can now find out how to file a charge, set up interviews with the EEOC and check the status of their charges all from the comfort of their homes.
More Money, More Lawsuits
As with so many government agencies, the EEOC is touting the amount of money it has recovered. The EEOC collected nearly $400 million from employers in the private sector and state and local government. Of that amount, the vast majority ($355.6 million) was paid voluntarily — through mediation, conciliation and other administrative enforcement.
On the litigation front, the EEOC recovered $42.4 million through litigation last year. The EEOC also stepped up the number of lawsuits it filed. The commission filed 184 lawsuits, more than doubling the number from FY 2016. Of the 184 suits, about 67 percent were for individuals, while only 16 percent were systemic suits.
You can now have the EEOC Training Institute staff train your supervisors (Leading for Respect) and employees (Respect in the Workplace). I have a client who has had the EEOC come provide harassment training for the last several years, and it looks like the Commission is institutionalizing those efforts. As the program is new, I cannot tell you what it is like. However, it is certainly something to consider, particularly in the wake of recent harassment complaints.
First, the EEOC is clearly trying to reduce the amount of time a charge spends with the agency. We have all had charges that were pending for more than two years—which then means you could have to defend a lawsuit with a back-pay figure that is already out of control. Perhaps the improved efficiencies will make these stale charges a thing of the past.
Second, the EEOC wants to resolve the charges early and is having some success doing so. I always talk with clients about EEOC mediation—and it works with many (although not all) charges. I have also noticed that EEOC investigators try to encourage settlement discussions even when the parties have not agreed to mediate the charge. Although I was initially leery of having the purportedly neutral investigator orchestrate negotiations, for the most part I have found the investigators’ efforts to be helpful and have resolved some charges (usually low dollar) in that way.
Third, note that the majority of the EEOC’s lawsuits are filed on behalf of individuals —not multiple plaintiffs or systemic issues. The EEOC has a list of priorities (harassment, pay disparity and disability are perennial favorites) and wants to make law on those issues. These numbers make clear that the Commission is willing to make that law one plaintiff at a time.
Finally, IMHO the best training involves your employment counsel. However, the EEOC’s training resources are worth considering. If you use these resources, it will be tough for the Commission (or a plaintiff’s lawyer) to argue that you don’t take prevention seriously.