Over the past few years, the Equal Employment Opportunity Commission (EEOC) has shifted its focus towards systemic lawsuits. It has also been able to obtain larger settlements than in the past. This article provides an overview of these and other recent EEOC trends.

1. Litigation

The EEOC filed 261 merit-based lawsuits in the United States in Fiscal Year 2011. This is 11 more lawsuits than the EEOC filed in FY 2010. The EEOC reported that the lawsuits filed included 162 Title VII claims, 80 Americans with Disabilities Act (ADA) claims, 26 Age Discrimination in Employment Act (ADEA) claims and two Equal Pay Act (EPA) claims.¹ 96 of the 235 systemic investigations resulted in “reasonable cause” determinations.² 35 of the systemic investigations resulted in settlements or conciliation agreements.³

2. Verdicts and Settlements

 a. Mediation

The EEOC has placed a strong emphasis on its mediation program. The EEOC has stated that the “mediation program has continued to be a very successful part of our enforcement operations.”⁴ In FY 2011, the EEOC’s private sector mediation program resulted in the “highest number of resolutions in the history of the program, with a total of 9,831 resolutions, 5 percent more than the 9,362 resolutions reported in FY 2010.”⁵ The EEOC obtained more than $170 million through the mediation program, which was an increase from $141 million in FY 2010.

b. Settlements

There have been several multi-million dollar settlements over the past year. In FY 2011, 277 merits suits resulted in $90.9 million in monetary recovery.⁶ The EEOC secured $54.3 million in Title VII resolutions; $27.1 million in ADA resolutions; $8.4 million in ADEA resolutions; and $1.1 million in resolutions involving more than one statute.⁷

3. Regulations

a. Regulatory Agenda

The EEOC has a regulatory agenda that seeks to enact regulations involving the Genetic Non-Discrimination Act of 2008 (commonly referred to as GINA) and final regulations under the Americans with Disabilities Act Amendments Act (ADAAA). The EEOC also has a renewed focus on age discrimination issues and updated recordkeeping and data collection requirements.

 i) ADAAA Regulations

In March 2011, the EEOC implemented the final regulations for the ADAAA. The ADAAA significantly expands the definition of disability, which allows more individuals to receive coverage under the ADAAA.⁸ The final regulations provide guidance on how to interpret whether a person has a disability by laying out nine rules of construction to guide the employers’ analysis. The rules also provide examples of impairments that employers should automatically consider disabilities, such as epilepsy, diabetes, cancer and bipolar disorder.

 b. Proposed Rules

 i) ADEA

The EEOC plans to proceed with its prior proposed rules, which clarify the meaning of the “reasonable factors other than age” defense to an ADEA claim and the disparate impact burden of proof under the ADEA. In November 2011, the EEOC voted in favor of a draft rule that defines the parameters of the reasonable factors other than age defense. The Office of Management and Budget must still review and approve the rule prior to its publication in the Federal Register.

 c. Enforcement Agenda

  i) Investigation Strategies

The EEOC announced that it will develop and implement investigative and litigation strategies that specify what it views as discriminatory practices. This is reflected in the EEOC’s E-Race (i.e., Eradicating Racism and Colorism from Employment) initiative. The E-Race initiative uses the EEOC’s investigation and litigation strategies to focus on the selection criteria and methods that foster discrimination based on unlawful factors, such as credit and background checks, arrest and conviction records, and employment tests.⁹

 ii) Class Actions

The EEOC explained in its enforcement agenda that it would continue focusing on class action type “pattern or practice” lawsuits, which remedy employers’ systematic discriminatory practices. The EEOC anticipates that the current trend will continue with over 30% of all lawsuits initiated by the EEOC involving class action-type lawsuits. It is important to note that the Federal Rule of Civil Procedure 23 requirements do not bind the EEOC in class actions initiated by plaintiffs’ attorneys.

4. Case Review

a. Aggressive Systemic Investigations And Subpoena Enforcement

As part of their systemic investigations, the EEOC is using more subpoena enforcement actions. The EEOC litigated a record number of subpoena actions in 2011—a total of 36, up from 28 last year. The EEOC succeeded in many of these cases, which gave the EEOC access to a considerable amount of information. The EEOC had three significant appellate victories, including EEOC v. Konica Minolta Business Solutions U.S.A., Inc., 639 F.3d 366 (7th Cir. 2011), EEOC v. Washington Suburban Sanitary Commission, 631 F.3d 174 (4th Cir. 2011), and EEOC v. Schwan’s Home Services, 644 F.3d 742 (8th Cir. 2011). In all three of these EEOC victories, the EEOC’s subpoenas were upheld, even over privilege arguments.

b. Deficient EEOC Pleading Arguments

In EEOC v. Global Horizons, Inc., 2011 U.S. Dist. LEXIS 127734 (D. Haw. Nov. 2, 2011), and EEOC v. United Parcel Service, Inc., 2011 U.S. Dist. LEXIS 111464 (N.D. Ill. Sept. 28, 2011), the courts scrutinized agency-initiated suits that do not lay out certain basic legal elements based on the Supreme Court’s seminal decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The Court in Twombly held that simply providing the bare elements of a case is not enough to support a class-type case.

In response to a Twombly argument, the EEOC frequently states that it expects to use the discovery process to uncover discriminatory practices. When an employer faces a complaint that lacks certain basic legal elements, the employer should challenge the deficiency at the beginning of the case and, if possible, file a motion to dismiss.

Another positive set of cases for employers is the line of cases that started in 2010. In these cases, courts sanctioned the EEOC for millions of dollars for aggressively pursuing meritless cases. For instance, in EEOC o/b/o Serrano, et al v. Cintas Corp., 2011 U.S. Dist. LEXIS 86228 (E.D. Mich. Aug. 4, 2011), the court sanctioned the EEOC for over $2.6 million in fees and litigation costs for engaging in questionable tactics.

 c. Discovery and Summary Judgment

In EEOC v. JBS USA, LLC, 2011 U.S. Dist. LEXIS 85868 (D. Colo. Aug. 4, 2011), the U.S. District Court of the District of Colorado gave a split opinion on the applicability of the bifurcation model first discussed in the United States Supreme Court case International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). The District Court applied a version of that model to certain discrimination claims, but questioned why it should be applied to pattern or practice harassment claims. Cases such as EEOC v. JBS demonstrate that the court may narrow the bifurcated Teamsters framework to only those claims truly susceptible to class treatment.

5. A Look Ahead

At the end of 2011, the EEOC hired more personnel and initiated a focus on systemic “big case” investigations and lawsuits against employers. The Obama administration, however, cut the EEOC’s budget in 2011 by over $6 million.¹⁰ This may result in more large-scale, high-profile cases because small-scale cases may not convey the EEOC’s message in a cost-effective way. In fact, on January 18, 2012, the EEOC released a draft of its strategic plan covering 2012 through 2016. One of the EEOC’s key strategic objectives listed in the draft was to “[u]se administrative and litigation mechanisms to identify and attack discriminatory policies and other instances of systemic discrimination.”¹¹

(1) EEOC Annual Report at 19.
(2) EEOC Annual Report at 19-20.
(3) EEOC Annual Report at 19
(4) EEOC Annual Report at 18.
(5) EEOC Annual Report at 18.
(6) EEOC Annual Report at 19.
(7) EEOC Annual Report at 19.
(8) See http://www.dcemploymentlawupdate.com/2009/09/articles/discrimination-in-the-workplac/eeoc-releases- proposed- regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act/.
(9) See http://www.eeoc.gov/eeoc/initiatives/e-race/goals.cfm#goal3.
(10) H.R. Rep. No. 112-284, at 265-266 (2011) (Conf. Rep).
(11) EEOC DRAFT STRATEGIC PLAN FOR FISCAL YEARS 2012 - 2016, p. 11, available at
http://www.eeoc.gov/eeoc/plan/upload/strategic_plan_12to16_DRAFT.pdf.