Key Takeaways:
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The EEOC report released in March confirms that employee discrimination claims remain on the rise
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Early mediation and conciliation remain a top priority for the EEOC to resolve employer/employee issues
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Employers should review policies and procedures with the EEOC’s Strategic Enforcement Plan in mind as well as the Pregnant Workers Fairness Act taking effect on June 27
In March 2023, the Equal Employment Opportunity Commission released its Annual Performance Report for the 2022 fiscal year (October 1, 2021 to September 30, 2022). The report provides a comprehensive overview of the EEOC’s private sector and federal government sector programs, progress, and challenges in its efforts to address unlawful employment discrimination and implement the objectives of the agency’s Strategic Enforcement Plan (SEP). Examination of the data offers insight as to how the agency is likely to prioritize resources for new, emerging issues and substantive areas for the next four years.
For the past several years, the EEOC’s SEP has focused on six substantive areas: (1) eliminating barriers in recruitment and hiring; (2) protecting vulnerable workers and underserved communities from employment discrimination; (3) addressing emerging and developing issues, like backlash discrimination against individuals of Arab, Middle Eastern and South Asian descent; (4) ensuring equal pay protections for all workers; (5) preserving access to the legal system by addressing issues like overly broad waivers and mandatory arbitration provisions; and (6) preventing systemic workplace harassment.
These priorities remain at the forefront of the agency’s Strategic Enforcement Plan for the next four years, according to the recently released draft SEP. The EEOC’s 2022 Annual Performance Report thus provides an overview of how the agency has allocated its resources to these objectives over the past fiscal year and a potential roadmap of what to expect from the EEOC moving forward. For example, of the 91 lawsuits filed by the EEOC in the 2022 fiscal year, nearly half involved at least one SEP priority area. Similarly, 43.1% of the successful conciliations held in FY 2022 involved one or more SEP priorities. Workplace harassment claims comprised the largest category of claim litigated by the EEOC, and the agency initiated 20 class cases and 3 systemic cases in furtherance of its objective to remedy widespread harassment in addition to the 14 cases it filed on behalf of individual employees. The EEOC initiated 22 lawsuits alleging discrimination in hiring, reflecting the agency’s intention to target recruitment and hiring practices that discriminate against protected groups and vulnerable/marginalized communities.
In terms of the overall numbers, the EEOC saw a nearly 20% increase in charges of discrimination filed in FY 2022, totaling 73,485. Of these new charges, over 10,000 alleged employment discrimination claims relating to the COVID-19 pandemic. Importantly, the EEOC filled 352 new positions—mainly investigators, mediators, and attorneys—and backfilled 148 existing vacancies to assist in handling the growing case load.
Mediation and conciliation remain key in resolving claims of discrimination at the agency level. The EEOC reported that it successfully resolved 6,578 of the 8,690 early mediations held in FY 2022. Conciliation, a voluntary, informal resolution process offered by the EEOC upon determining that there is reasonable cause that a violation occurred, resulted in a successful resolution 44% of the time. The EEOC attributed the success of its ADR program in part to its outreach efforts to employers, highlighting the benefits of early mediation, and to its successful pivot to virtual mediation during the COVID-19 pandemic, which was discussed in a previous post.
The EEOC’s 2022 Annual Report confirms what many employers and employment law practitioners experienced last year—a continued rise in new charges of discrimination, particularly claims related to COVID-19; a visible emphasis and preference for early mediation by the agency in most new charges; and across-the-board lags in charge processing and investigations from understaffing and the replacement of antiquated case management programs.
While significant increases in staffing of “front-line” agency employees and technological improvements to the EEOC’s internal case management system suggest that the timeline for charge processing and investigation may improve, early mediation will likely remain the most efficient tool for employers seeking to resolve new charges.
Based on the EEOC’s past performance, employers can expect that the agency will continue to direct its resources and give special emphasis to claims involving its enforcement priorities, including emerging and developing issues relating to the use of algorithms and Artificial Intelligence in employment decisions, the Pregnant Workers Fairness Act taking effect on June 27, 2023, and employment discrimination associated with the COVID-19 pandemic. Employers should review their policies and procedures to ensure compliance and evaluate whether updates are needed to address these issues.
