The U.S. Equal Employment Opportunity Commission in 2013 increased its focus on cases involving systemic discrimination, disability discrimination and pregnancy discrimination, but had mixed results in court and saw a dip in monetary penalties it recovered, according to a report by Seyfarth Shaw.
The firm released a 216-page e-book by partners Gerald Maatman Jr. and Christopher DeGroff and senior associate Reema Kapur analyzing EEOC activity in fiscal year 2013, which ended on Sept. 30.
EEOC lawyers last year filed 131 lawsuits, up from 122 in 2012 but well below a record 261 in 2011. At the same time, the EEOC resolved 209 lawsuits in 2013, recovering $39 million in penalties, down from 2012, when 254 suits were resolved for $44.2 million. However, the EEOC secured $372 million in monetary benefits based on the resolution of administrative charges, up slightly from 2012.
The majority of cases in 2013 – 89 suits, or 68 percent – were filed on behalf of individuals alleging discrimination. Agency lawyers brought 21 suits (16 percent of the total) alleging widespread “systemic” discrimination, which the EEOC has flagged as a priority in its strategic enforcement plan. Another 21 suits were class actions in which the alleged discriminatory acts did not rise to the systemic level.
“In its quest to increase its impact (and perhaps political relevance) even while its funding has dwindled, the EEOC has been actively pursuing ‘systemic cases,’” according to the report, which said the EEOC’s goal is “to champion bigger, better and more media-driven cases.”
However, the report gave the EEOC “a failing grade” for the way it has investigated and litigated such cases.
The report points to EEOC v. CRST Van Expedited Inc., a systemic sexual harassment case in which a judge in U.S. District Court for the Northern District of Iowa ordered the EEOC to pay $4.7 million in attorney fees, and EEOC v. Bloomberg LP. In that case, the EEOC’s systemic pregnancy discrimination case was whittled down to a single count on behalf of one plaintiff, and the court allowed Bloomberg to file for attorney fees as the prevailing party. In addition, in EEOC v. Peoplemark Inc., the U.S. Court of Appeals for the Sixth Circuit upheld an award of $752,000 against the agency, finding its suit was “based on a company-wide policy that did not exist.”
The report notes that there has been an uptick in the number of cases filed under the Americans with Disabilities Act. “We expect the dogged focus on ADA enforcement and litigation to continue in FY 2014,” states the report, noting that 51 out of the 131 suits filed in 2013 alleged claims under the act.
According to the report, there was a surge in disability suits involving leave as a reasonable accommodation. Many of the leave requests were for non-traditional disabilities, including mental impairments, cancer and HIV.
Pregnancy discrimination was also “front and center for the EEOC in 2013,” according to report, which cites four settlements ranging from $20,000 to $100,000. “The EEOC is clearly focused on breaking the ‘maternal wall’ with its scrutiny on pregnancy discrimination.”
Lawsuits alleging discrimination based on religion were also on the rise. In fiscal year 2013, the EEOC filed 12 such suits, up from nine in 2012.
Also in 2013, the report noted, the EEOC resorted to the courts to enforce its subpoenas fewer times than in prior years, with just 17 filings, compared to 33 in 2012 and 36 in 2011. At the end of fiscal 2013, the EEOC had 231 cases on its active docket.
“The EEOC is increasingly focused on making law rather than enforcing it,” the report concludes. “It is pushing the boundaries of its own authority in terms of substantive focus, procedural arguments and investigative techniques. In FY2014, we fully expect to see the EEOC looking for that next novel theory that will keep it at the top of employers’ minds.”
The full report from Seyfarth Shaw is available to firm clients and “interested corporate counsel.”