EEOC-Initiated Litigation - 2023 Edition

©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 3 the agenda at issue.15 Burr and Foxx opined that such actions “render the transparency measures embodied by the reforms a mockery, as votes declining to authorize certain lawsuits do not appear publicly on EEOC’s website.” 16 Employers on the wrong side of an EEOC enforcement action know all too well that the EEOC’s internal deliberations are opaque and from the employers’ perspective there can seem to be little rhyme or reason to the timeline from investigation to litigation. While as iterated above, the EEOC has apparently sought to address the issue of transparency—in particular through Commissioner Dhillon’s leadership—and also through other means like issuing Performance and Accountability Reports for each fiscal year with information about the EEOC’s strategic priorities and the volume of charges and litigation matters it brings, the Agency has never reported information that shows how long a charge typically is in the pipeline before it reaches litigation. To that end, we have performed an in-depth analysis of information that the EEOC includes in its complaint to shed light on how quickly the EEOC moves matters from letter of determination, through conciliation, and ultimately through litigation. C Demystifying EEOC Determination, Conciliation & Litigation Timeline The EEOC must satisfy a number of prerequisite steps before taking any charge to litigation. Among these are issuing a letter of determination that explains the Agency has found reasonable cause to believe the employer has violated one of the statutes enforced by the EEOC, an invitation to resolve the charge through voluntary conciliate, and written notice that conciliation has failed. For charges that result in litigation, the EEOC spends, on average, about four months in conciliation. After declaring that conciliation has failed, the EEOC takes, on average, about five months to file suit. For complaints filed in FY2022, both of these figures are significantly longer than the last time we reported on this information. What remains true, however, is that location matters, and there are notable differences in speed among the EEOC’s district offices. In April 2015, the Supreme Court issued its decision in Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015), holding that the EEOC must demonstrate that it has satisfied its statutory duty of “conference, conciliation, and persuasion” before filing suit. In an apparent effort to meet the Court’s directive, the EEOC began later that year to routinely include additional information in its complaints, such as when it had issued determinations in connection with the underlying charges and when it had declared conciliation efforts to have failed. As part of our regular tracking of EEOC complaints, we have collected and analyzed this and other information from hundreds of complaints. From this data, we are able to calculate how long it typically takes for the EEOC to move from step to step, and to compare the relative pace of different EEOC district offices. A predicate to any EEOC-initiated litigation is receipt of a letter of determination, which triggers the EEOC and the employer to begin the conciliation process. For employers, a longer conciliation process generally is better, as it suggests that the EEOC is more engaged in a give and take process about how to resolve the dispute without resort to litigation. In contrast, a short conciliation suggests that one or both parties are unwilling to bend their positions to negotiate a mutually acceptable outcome. According to our analysis of 15 Id. 16 Id. Most Time for Conciliation: • Phoenix (171 days) • Chicago (163 days) • Los Angeles (155 days) • San Francisco (151 days) According to our analysis of complaints filed in EEOC District Offices in FY2022: Least Time for Conciliation: • Atlanta (73 days) • Houston (52 days) • Memphis (40 days) • Miami (37 days) 120 Average days spent in conciliation