United States: Bulldozing The Backlog & Doubling Filings: EEOC's 2017 Performance And Accountability Report Shows Decreased Inventory And A Surge In Filings

Seyfarth Synopsis: On November 15, 2017, the EEOC released its annual Performance and Accountability Report for Fiscal Year 2017 – its internal "report card" for its fiscal year 2017. The report touts the EEOC's progress in reducing charge inventory, as well as the increased number of merits lawsuits that were filed by the EEOC over last fiscal year. The report notes that those filings more than doubled over FY 2016.

On November 15, 2017, the EEOC released its annual Performance and Accountability Report ("PAR"). (The PAR is available on the EEOC's website — here.) The PAR reports on the agency's progress during FY 2017 – from October 1, 2016 through September 30, 2017 – in meeting the goals and enforcing the strategic priorities outlined in its Strategic Enforcement Plan. The major takeaways from this year's PAR are the substantial reduction in the EEOC's charge inventory, as well as the considerable increase in the number of lawsuits that the Commission filed against private employers. The PAR also reports notable increases in systemic investigations and monetary recovery from resolutions of systemic investigations.

Huge Increases In Merits And Systemic Lawsuits

The EEOC filed 184 merits lawsuits in FY 2017. This is more than double the 86 merits lawsuits that were filed in FY 2016. The PAR reports that 124 of those lawsuits were on behalf of individuals, 30 were non-systemic suits with multiple victims, and another 30 were systemic claims. The EEOC labels a case "systemic" if it "has a broad impact on an industry, company or geographic area." The EEOC also filed 18 subpoena enforcement actions in FY 2017.

The 30 systemic lawsuits represent a sizeable jump over prior years (30 in FY 2017, compared to just 18 in FY 2016 and 16 in FY 2015). Although this may seem like an alarming increase, compared to the total number of filings, systemic lawsuits actually account for a smaller percentage of filings compared to last year (16% of all merits lawsuits in FY 2017 vs. 20% in FY 2016).

The PAR notes that the EEOC's field offices resolved 329 systemic investigations and collected $38.4 million in remedies (compared to 273 and $20.5 million in FY 2016). This is a near record for monetary relief for systemic cases. The EEOC also issued cause determinations finding discrimination in 167 systemic investigations (compared to 113 in FY 2016). Consequently, not only did the EEOC resolve markedly more systemic investigations compared to FY 2016, but also it also made considerably more cause determinations that it converted to beefed-up recoveries for claimants compared to last year.

Whether the Commission continues on this pace in 2018 is an open question. Change is coming, as two new Commissioners appointed by President Trump are waiting in the wings for Senate confirmation. Presumably, the EEOC also will get a new general counsel by 2018, and the impact these changes may have on the pace of litigation and the types of cases brought by the EEOC are open questions.

Bulldozing The Backlog Of Pending Charges

The EEOC also pats itself on the back for reducing the large charge backload that has bogged down the agency for years. The current EEOC Acting Chair, Victoria Lipnic, stated: "[t]he pending inventory of private sector charges (the backlog) has been a longstanding issue for the EEOC and the public it serves. Early in the calendar year, we made addressing the backlog a priority." The PAR shows that the EEOC did so.

In FY 2017, the EEOC resolved 99,109 charges, a marked increase over the past two years. In fiscal years 2016 and 2015, the EEOC resolved 97,443 and 91,503 charges respectively. As a result, the EEOC decreased its charge inventory by 16.2%, to 61,621. This is the lowest level of inventory in 10 years and represents a significant reduction compared to FY 2016, where the EEOC only reduced its outstanding charges by 3.8%. The PAR credits the EEOC's renewed emphasis on inventory reduction strategies and priority charge handling procedures, technological enhancement, and front-line staff hired in FY 2016. The EEOC also noted that it responded to over 540,000 calls to its toll-free number and 155,000 inquiries to field offices – on par with last year's numbers of 585,000 and 160,000 respectively.

Settlements: Keeping It Consistent

The EEOC secured approximately $484 million in total relief in FY 2017. This tracks close last year's total relief of $482.1 million. It also includes $355.6 million obtained through mediation, conciliation, and settlement for victims of discrimination in private, state and local government, and federal workplaces. That number is marginally up from last year, which saw $347.9 million in recoveries.

Litigation recoveries, on the other hand, have been steadily declining in the past few years, hitting only $42.4 million in 2017. This is markedly lower than FY 2016 and FY 2015, which saw the EEOC obtain $52.2 million and $65.3 million in litigation recovery respectively.

Implications For Employers

In her opening remarks in this year's PAR, Acting Chair Victoria Lipnic called FY 2017 "a year of transition" due to the change in administration. The PAR gives few other clues as to what that transition looks like from inside the agency, or how the EEOC is adapting to its new political environment. About the only thing U.S. employers can be sure of is that the EEOC is not laying down its enforcement weapons. It may be no coincidence that litigation activity is increasing at the same time that litigation recoveries are going down. The EEOC may be trying to boost its recovery numbers for FY 2018, and it may be mining its backlog of charges to help it do so. Clearly the EEOC is trying to make its mark by doubling the number of lawsuits it filed over last year. Whether those lawsuits will be successful or not remains to be seen.

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