Last week, the EEOC released final statistics for the fiscal year ended September 30, 2011 and has issued a draft strategic plan that highlights a particular emphasis on pursuing systemic bias cases. Employers can take note of emerging trends regarding EEOC workplace enforcement efforts from these announcements.
The January 24, 2012 press release, Private Sector Bias Charges Hit All-Time High, reflected another increase in the number of employment discrimination charges received by the EEOC to 99,947. Retaliation once again led the pack as the most frequently asserted complaint in more than 37 percent of those claims. It was the ninth consecutive year that the percentage of retaliation claims has increased compared to, for example, race claims (which have remained relatively constant over that period) and gender claims (which have declined slightly). The EEOC filed 300 lawsuits in FY 2011, an increase of more than 10 percent over the prior year, but reduced the number of case filings from five years ago by more than 100.
In its draft Strategic Plan for 2012-2016 released on January 18, 2012, the EEOC announced that it will emphasize pursuit of systemic discrimination, which it describes as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” EEOC statistics reflect that 23 systemic discrimination cases were filed in FY 2011, an increase over last year, and that nearly 600 investigations were underway.
Where might the EEOC’s focus on systemic bias be concentrated? Recent enforcement efforts have included pursuit of allegations of gender-based harassment against a Texas restaurant chain, a Michigan engineering firm for issues concerning age, and an international beverage company that the agency accused of race discrimination in hiring. The EEOC also has held public meetings in recent months about hiring practices it believes create discriminatory barriers to hiring, including screening candidates based on arrest and conviction records, credit history, or unemployment status. For additional information, please see “Not Hiring the Unemployed: Is There a Disparate Impact on Minorities?” in the March 21, 2011 edition of Foley’s Legal News: Employment Law Update. Another public meeting is being scheduled next month regarding pregnancy and caregiver discrimination. In his State of the Union Address, President Obama also placed great emphasis on employment concerns, especially equal pay, and creating job opportunities for returning veterans. Based on these public statements, there is fertile ground for the EEOC to select hot-button issues in pursuit of its strategic goal.
Budget cuts for FY 2012 may impact enforcement efforts, but the EEOC seems poised to challenge what it perceives as widespread bias in hiring and pay practices. In this election year, with both parties emphasizing job creation and reducing unacceptably high unemployment rates, employers should continually examine their policies and practices to ensure that there is no disproportionate impact on any protected group.