EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 13 5. The EEOC’s Strategic Enforcement Priorities Despite the significant changes in leadership that have occurred over the past few years, the EEOC continues to operate under its Strategic Enforcement Plan (“SEP”) for FY 2017-2021, established in October 2016. 78 The EEOC first unveiled its SEP in December 2012, stating that the plan “established substantive area priorities and set forth strategies to integrate all components of EEOC's private, public, and federal sector enforcement to have a sustainable impact in advancing equal opportunity and freedom from discrimination in the workplace.” 79 The Commission’s six major enforcement priorities have remained consistent across both iterations of the SEP. But the EEOC can and has changed how it interprets those priorities over the life of those Plans, which has often led to a shift in how the EEOC approaches litigation and the topics and issues it chooses to enforce in the federal courts . 80 According to the EEOC “the purpose of the [Strategic Enforcement Priorities] is to focus and coordinate the EEOC's programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace. ” 81 Additionally, the 2017-2021 SEP recognized the importance of “systemic” cases to its overall mission. Systemic cases are those with a strategic impact, meaning they affect how the law influences a particular community, entity, or industry. The EEOC continues to place special emphasis on systemic lawsuits. In November 2019, the EEOC announced that it would be replacing the combined Performance Accountability Report that used to be published in November of each year. 82 Among other things, the annual Performance Accountability Report contained data regarding the number of systemic cases being handled by the EEOC. The EEOC will now be publishing an Agency Financial Report in November and a separate Annual Performance Report in February along with the EEOC’s Congressional Budget Justification. The Annual Performance Report will report on the progress of the EEOC’s efforts to achieve its strategic goals and objectives. Employers will have to wait for that Report in February for updated data regarding the EEOC’s pursuit of systemic cases. As in FY 2020, the EEOC reported in this year’s Agency Financial Report that the Commission again filed only 13 systemic cases, down from 17 in FY 2019 and 37 in FY 2018 . 83 Systemic lawsuits accounted for 11% of total filings by the EEOC in FY 2021. In contrast, by the end of FY 2018, the EEOC had 71 systemic cases on its active docket, two of which included over 1,000 victims. Systemic cases accounted for 23.5% of all active merits lawsuits in that year. 84 78 U.S. Equal Employment Opportunity Commission, Press Release: EEOC Updates Strategic Enforcement Plan (Oct. 17, 2016), https://www.eeoc.gov/eeoc/newsroom/release/10-17-16.cfm. To date, there has been no suggestion that the SEP will change in 2022. 79 U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017 - 2021, https://www.eeoc.gov/eeoc/plan/sep-2017.cfm. 80 See Gerald L. Maatman, Jr., Christopher J. DeGroff, Matthew J. Gagnon, and Ala Salameh, What A Long Strange Year It’s Been . . . The EEOC’s Fiscal Year Comes To An Uncharacteristically Quiet Close , Workplace Class Action Blog (Sept. 30, 2019), https://www.workplaceclassaction.com/2019/09/what-a-long-strange-year-its-been-the-eeocs-fiscal-year-comes-to-an- uncharacteristically-quiet-close/. 81 U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017 - 2021, https://www.eeoc.gov/eeoc/plan/sep-2017.cfm. 82 U.S. Equal Employment Opportunity Commission, Fiscal Year 2019 Agency Financial Report, at 9, https://www.eeoc.gov/eeoc/plan/upload/2019afr.pdf. 83 U.S. Equal Employment Opportunity Commission, Fiscal Year 2020 Agency Financial Report, at 11, https://www.eeoc.gov/sites/default/files/2020-11/2020-AFR.pdf. 84 U.S. Equal Employment Opportunity Commission, Fiscal Year 2018 Performance and Accountability Report, https://www.eeoc.gov/eeoc/plan/2018par.cfm.