EEOC Systemic Recoveries Increase in 2015; Trend Expected to Continue in 2016

Author: Marta Moakley, XpertHR Legal Editor

December 30, 2015

According to its 2015 Performance and Accountability Report (PAR), the Equal Employment Opportunity Commission (EEOC) secured more than $525 million in private, state and local government and federal workplace discrimination cases. Of the overall amount, $356.6 million was secured through mediation, conciliation and settlements. Systemic investigations, or those that address patterns or practices of discrimination or policies that have a broad impact, accounted for a notable $33.5 million in remedies prior to filing litigation.

In a statement, EEOC Chair Jenny R. Yang remarked that those at the EEOC "recognize the progress we have made and the challenges we have ahead." The EEOC's efforts center around the goals in its Strategic Plan for Fiscal Years (FY) 2012-2016, which the EEOC will extend through FY 2018 after receiving Office of Management and Budget approval. These enforcement goals include addressing issues regarding vulnerable workers, underserved communities and new statutory responsibilities.

In an interview with XpertHR, Barry Hartstein, Shareholder and co-chair of Littler's EEO & Diversity Practice Group, as well as executive editor of Littler's report analyzing the PAR, described FY 2015 as "one of the most active years in recent memory." The amount recovered as a result of systemic investigations in 2015 ($33.5 million) was higher than that recovered in 2014 ($13 million). The continued focus on systemic investigations also results in a higher likelihood of reasonable cause findings (36% of all investigations as opposed to 5% of pending individual charges), spurring the case onto a resolution or litigation instead of dismissal.

In addition, of the 142 lawsuits alleging discrimination the EEOC filed during FY 2015, 53 (or 37%) were disability cases. Hartstein called this ongoing scrutiny by the EEOC of workplace disability practices "fascinating." Littler urges employers to closely monitor three compliance areas during FY 2016:

  • Inflexible leave policies or no-fault attendance plans should be reassessed in light of their high risk for enforcement activities;
  • Continuing engagement in the interactive process in handling requests for reasonable accommodation should be stressed; and
  • Employer wellness policies that may not be viewed as "voluntary" by the EEOC will create risk for employers.

Hartstein expects "to see an uptick in activity next year around a number of trends, particularly systemic investigations and increased scrutiny of hiring policies, pregnancy discrimination and equal pay, among others."