The EEOC Has Released Its Fiscal Year 2013 Statistics – What Does Your Jurisdiction Need To Do Now To Avoid Being Part Of Next Year’s Statistics?

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The EEOC Has Released Its Fiscal Year 2013 Statistics – What Does Your Jurisdiction Need To Do Now To Avoid Being Part Of Next Year’s Statistics?  

March 2014

The United States Equal Employment Opportunity Commission (“EEOC”) is responsible for enforcing various federal employment statutes, including Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act of 1990 (“ADA”), Section 501 of the Rehabilitation Act of 1973, the Age Discrimination in Employment Act of 1967 (“ADEA”), the Equal Pay Act of 1963 (“EPA”), and the Genetic Information and Nondiscrimination Act of 2008 (“GINA”). While the U.S. Department of Justice and Attorney General must approve and pursue any lawsuit against public employers for violations of these statutes, the EEOC nevertheless carries the initial burden to investigate charges filed against public employers and, in cases where it finds “reasonable cause” that a violation of an employment statute has occurred, to attempt to settle or conciliate that charge with the public employer.

On February 5, 2014, the EEOC released comprehensive enforcement and litigation statistics for its 2013 fiscal year, which ran from October 1, 2012, to September 30, 2013. These statistics are available on the EEOC’s website at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm. As in past years, the EEOC’s statistics provide a wealth of information about the agency’s priorities and administrative charge filing activity during FY 2013. Some of the highlights that can be gleaned from the data released this year include the following:
  • The agency obtained $372.1 million through its administrative process during FY 2013 – the highest monetary recovery in the agency’s history.
  • 93,727 charges were filed with the EEOC during FY 2013. Although this number represents a 5.7% decrease from the 99,412 charges filed during FY 2012, it was the sixth year in a row that more than 90,000 charges have been filed with the agency during the fiscal year period.
  • 38,539 charges (41.1%) filed in FY 2013 included a claim of retaliation, making retaliation the most frequently cited basis for charges of discrimination. After retaliation, the most frequently cited bases for charges of discrimination were race (33,068/35.3%); sex (27,687/29.5%); and disability status (25,957/27.7%).
  • During FY 2013, the highest number of charges were filed in the following states: Texas (9,068 charges), Florida (7,597 charges), California (6,892 charges), Georgia (5,162 charges), and Illinois (4,781 charges).
  • In an effort to reduce its backlog of cases from prior years, the EEOC resolved 97,252 charges in FY 2013, making it the fourth year in a row that the EEOC has resolved more charges of discrimination than it has taken in. On average, it took the agency 267 days to resolve each individual charge during FY 2013.
  • The EEOC found “reasonable cause” that discrimination had occurred in only 3,515 (3.6%) of the charges it resolved during FY 2013. Although this number appears low, it is important to remember that even in cases where the EEOC has dismissed a charge because its investigation has not found a violation of the employment statutes, charging parties may nonetheless file a lawsuit against their employer in federal court. Moreover, the percentage of “reasonable cause” determinations may be much higher (perhaps more than 35%) for charges alleging class-based or systemic violations. This apparent discrepancy is not surprising in light of the agency’s on-going efforts to focus on cases involving class-based or systemic claims.
  • During FY 2013, the EEOC filed 131 lawsuits alleging substantive violations of the statutes it enforces. 78 of those lawsuits alleged claims under Title VII, while 51 of those lawsuits alleged claims under the Americans with Disabilities Act.
  • The EEOC resolved 209 lawsuits alleging substantive violations of the statutes it enforces during FY 2013, resulting in $38.6 million in monetary benefits to aggrieved individuals, plus wide-ranging injunctive relief tailored to the particular issue in the lawsuits.
During 2014, public employers should expect the EEOC to continue focusing on the priorities set forth in its Strategic Enforcement Plan for 2013-2016. These priorities are: eliminating barriers to recruitment and hiring; protecting immigrant, migrant, and other vulnerable workers; addressing emerging and developing issues (such as LGBT coverage under Title VII’s sex discrimination provisions, ADA accommodation issues, and pregnancy accommodation issues); enforcing equal pay laws; preserving access to the legal system (e.g., by targeting employers who engage in retaliatory conduct); and preventing harassment. A public employer who receives a charge that includes allegations within one of these categories should expect heightened scrutiny from the EEOC.

Switching to a positive note, there are a number of steps that public employers can take now to reduce their chances of becoming a part of the EEOC’s statistics in 2014. First, it is imperative that public employers establish and consistently enforce strong policies that outline the organization’s prohibition on discrimination and harassment. Such policies should define discrimination and harassment, provide examples of conduct that is prohibited, state that prohibited conduct will not be tolerated and will lead to discipline, encourage employees to report complaints promptly, clearly describe the procedures that employees should follow to report a complaint, confirm that the employer will not retaliate against anyone who files a complaint in good faith, and explain the procedures that supervisors should follow if an employee complains to them. Discrimination and harassment policies should be reviewed and updated on a regular basis so that they are consistent with any recent changes in the applicable employment laws. Employers should provide employees with copies of the policies, post the policies in conspicuous locations, and, ideally, have employees sign acknowledgments confirming that they have reviewed and understand the policies.

Second, public employers should provide all employees (not just supervisors and managers) with periodic training regarding the employer’s policies against discrimination, harassment, and retaliation. Supervisors and managers should receive additional training on their unique responsibilities and obligations under the employer’s discrimination and harassment policies, as well as training on topics such as how to properly manage and evaluate employees’ performance and how to address an employee’s disability status or request for an accommodation. Employers who provide such training are often able to prevent policy violations in the first instance or, alternatively, may be able to rely on that training to defend against an employee’s claim or request for punitive damages in a discrimination or harassment lawsuit. Live training with a professional trainer is preferred, as such training provides an opportunity for employees to ask questions about any issues that need to be clarified or further explained.

Third, public employers should promptly and thoroughly investigate any potential violations of discrimination and harassment policies – even in cases where no one has “formally” complained, but the employer is on notice of a violation or potential violation. The person who is selected to conduct the investigation should be neutral, objective, and have experience conducting investigations. The investigation efforts and findings should be well-documented and kept separate from employees’ personnel files. If an investigation reveals that a policy violation has occurred, appropriate disciplinary or other remedial action should be taken that is sufficient to prevent future violations.

Finally, public employers should respond appropriately if they receive notice that an EEOC charge (or other administrative charge) has been filed against them. When faced with a charge, public employers should issue document hold notices to potential witnesses, reminding them to maintain any documents (including emails) that may be relevant to the charging party’s claim. If the EEOC has invited the employer to mediate the charge, consider whether this option might benefit the organization. Notably, in FY 2013, the EEOC’s mediation program achieved a resolution in 8,890 out of 11,513 mediations that were conducted (77.2%). Many employers find mediation to be an attractive option when faced with an EEOC charge. In cases where mediation is successful, it not only brings closure to the matter, but also avoids the time and expense associated with an EEOC investigation. In cases where mediation is not an option or is unsuccessful, the employer should prepare and submit an accurate, compelling, and comprehensive position statement to the agency, along with documentary evidence that supports the employer’s position. It is important to remember that the failure to act proactively to prevent or respond to a charge today could lead to unnecessary and costly litigation tomorrow.

*As published in the NPELRA Connections Newsletter
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