EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 1 PART I CURRENT TRENDS IN EEOC LITIGATION A. Another Year Of Turnover In Commission Leadership And Shifting Strategic Priorities 1. Changes Made; Changes Reversed Last year, we reported on how the new EEOC leadership, installed by the Trump administration late in his presidency, had been pushing to make substantive changes to how the EEOC approaches its litigation and enforcement programs. We made special note of two changes that we believed could have a lasting impact on EEOC litigation: the changes the EEOC tried to make to its conciliation and mediation procedures, and its efforts to scale back some of its own litigation authority by taking that authority out of the hands of the General Counsel and Regional Attorneys and placing it firmly back in the hands of the Commission. Both initiatives encountered setbacks in the new year. On July 7, 2020, the EEOC officially announced a new pilot program intended to improve conciliation procedures at the Commission. 1 T he program was built “on a renewed commitment for full communication between the EEOC and the parties, which has been the agency’s expectation for many years.” 2 O n October 8, 2020, the EEOC released the specifics of additional proposed changes to the conciliation process in an NPRM. In its NPRM, the EEOC acknowledged that, historically, it had elected not to adopt detailed regulations relative to its conciliation efforts based on its belief that retaining flexibility over the conciliation process would “more effectively accomplish its goal of preventing and remediating employment discrimination. ” 3 W hile the Commission’s NPRM made clear that the Commission still believes it is important to maintain a flexible approach to conciliation, it also acknowledged that its conciliation efforts had not been terribly successful at resolving charges . 4 In an effort to improve the effectiveness of the conciliation process, the NPRM sought to amend the conciliation process for charges brought pursuant to Title VII, ADA, GINA, and the ADEA. The EEOC stated in the NPRM that the proposed amendments establish “basic information disclosure requirements that will make it more likely that employers have a better understanding of the EEOC’s position in conciliation and, thus, make it more likely that the conciliation will be successful.” 5 T he EEOC’s perceived lack of transparency during the conciliation process had long troubled employers, who often felt they lacked information at the conciliation stage to meaningfully evaluate risk and make decisions about settlement. The changes proposed by the EEOC were seen by many as a welcome attempt to address this issue. The Republican-led Commission adopted the Final Rule in January 2021, just before the new Biden administration was sworn in. The new rule went into effect on February 16, 2021. But it did not last long. In the following months, Congress exercised its authority Under the Congressional Review Act, which allows it to overturn executive branch regulations within 60 legislative days of when they were issued . 6 O n May 19, 2021, the 1 Press Release, U.S. Equal Employment Opportunity Commission, EEOC Announces Pilot Programs to Increase Voluntary Resolutions (July 7, 2020) https://www.eeoc.gov/newsroom/eeoc-announces-pilot-programs-increase-voluntary-resolutions. 2 Id. 3 Update of Commission’s Conciliation Procedures, 85 Fed. Reg. 64079 (proposed Oct. 9, 2020) (to be codified at 29 C.F.R. pt. 1601 and 1626). 4 Id. Over the last several years, the EEOC’s conciliation efforts resolved less than half of the charges where a reasonable cause finding was made. Specifically, between fiscal years 2016 and 2019, only 41.23% of the EEOC’s conciliations with employers were successful. 5 Id. 6 See Congressional Review Act, 5 U.S.C. § 801.