EEOC Issues 2008 Performance and Accountability Report
The U.S. Equal Employment Opportunity Commission, the federal agency which enforces Title VII and many other federal employment laws, recently issued its Performance and Accountability Report (PAR) for its fiscal year 2008. This report contains the agency’s annual assessment of its program and financial performance, as well as an updated Strategic Plan covering a period through fiscal year 2012. The report also reveals useful insight for employers regarding current trends in employment discrimination charges, litigation, and the EEOC’s enforcement strategy and agenda.
Of particular interest is the statistical information presented in the PAR regarding the number of charges filed in the private sector. In FY 2008, the EEOC received a staggering total of 95,402 charges against private employers. This number constitutes an overall 15% increase from FY 2007. Also, the EEOC filed a total of 290 “merits” lawsuits and 36 subpoena enforcement and other actions. 179 of those filings involved suits on behalf of individuals, and 111 were class actions suits. The EEOC resolved 339 merits lawsuits for a total monetary recovery of $102,151,138.
The increase in charges can, perhaps to a large extent, be explained as a result of the substantial number of workers displaced from employment in the past 14 months due to layoffs and reductions in force. A similar increase in the number of charges occurred in FY 2001 and 2002, which correlates with the economic recession during that time period. A gradual decline in the number of charges occurred from FY 2004 to 2006, during years of greater national economic expansion. Thus, employers can probably expect to see continuing and, perhaps, increasingly higher numbers of charges being filed in the private sector until our economy recovers and begins to grow again. It should also be noted that the percentage of both retaliation and age discrimination claims in charges increased in FY 2008, while the percentage of other types of claims (i.e., race, disability, sex, religion, and national origin, and equal pay) either remained flat or slightly declined. These statistics are also a reflection of the recession in FY 2001 and 2002, when the rate of age discrimination claims rose as a probable result of the reductions in force which were occurring during that time period.
The PAR also discusses the EEOC’s strategy towards “identifying, investigating, and litigating systemic cases, which the [EEOC] defines as ‘pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location.’” Thus, it appears that the EEOC intends to devote more of its attention to class actions rather than smaller, individual cases. It remains to be seen the specific types of alleged discrimination on which the EEOC will focus as part of this strategy towards “systemic cases.” However, the PAR mentions that one objective in these cases is to advance the EEOC’s new “E-RACE” initiative (“Eradicating Racism and Colorism in Employment”). PAR describes this initiative as intended to “identify issues, criteria, and barriers” that contribute to race and color discrimination.
Through its PAR, the EEOC thus reveals an aggressive enforcement agenda, as well as important information about trends and challenges currently facing employers. Since every charge filed with the EEOC is a potential lawsuit (whether filed by the EEOC or the charging party), employers must be ready to investigate and vigorously defend each one. Good employment practices are the key not only to avoiding claims of discrimination, but also to laying the framework for possible legal defenses in the event that a charge is brought. With record numbers of charges being filed today, employers should take immediate and proactive steps to review their practices (with the advice of employment counsel), in order to ensure compliance with Title VII and the other laws enforced by the EEOC.