EEOC-Initiated Litigation - 2023 Edition

4 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP complaints filed in FY2022, the average time spent in conciliation is 120 days. For employers hopeful to have more time to engage in conciliation, the most accommodating EEOC District Offices are Phoenix (171 days on average), Chicago (163 days), Los Angeles (155 days), San Francisco (151 days), and Charlotte (149 days). In contrast, the EEOC District Office with the quickest trigger is Miami, which on average spends just 37 days conciliating charges that it ultimately takes to litigation. Miami is followed by Memphis (40 days), Houston (52 days), and Atlanta (73 days). While the averages provide useful benchmarks for employers, it is important to keep in mind that each case moves at its own pace, and there can be extreme outliers in both directions. The Chicago District Office provides the best example: it is responsible for both the shortest and longest conciliations we tracked over the last year. In one case, it declared an end to conciliation in just nine days, while in another it conciliated for 706 days (nearly two years) before filing suit. But it is also true that the EEOC’s annual fiscal year end push does not include rushing from determination to litigation. In fact, our review showed there were only a handful of determinations in July that resulted in complaints filed by the September 30 fiscal year end, and none at all that were based on determinations issued in August and September. To say it another way, an employer who receives a letter of determination in the final quarter of the government’s fiscal year is far more likely to face litigation in the next fiscal year rather than immediately. The common assumption among employers is that it is a race to the courthouse once the EEOC deems conciliation failed, but our analysis suggests otherwise. In FY2022, only three complaints were filed within the first month after the EEOC declared that conciliation had failed. The average time to file the complaint is 145 days, or nearly five months. The EEOC District Offices that are quickest to proceed to court are Memphis (42 days after ending conciliation, on average), Indianapolis (73 days), Dallas and Philadelphia (both 104 days), and Chicago (118 days). The slowest moving District Offices at this step are Houston (247 days), St. Louis (226), Charlotte (205), Miami (193 days), and Birmingham (155 days). Our analysis suggests that the end of the EEOC’s fiscal year remains the best predictor for how long it will take for the EEOC to file a complaint. Nearly all notices that conciliation has failed which are issued in the period from May to September result in complaints filed in September. In other words, an employer that receives a conciliation failure notice in this window should expect to see the complaint during the EEOC’s annual September filing push. In contrast, a conciliation failure notice served between October to April is more likely to result in a complaint filed sometime well ahead of the September 30 deadline. It is debatable whether employers should prefer a shorter or longer time period from the end of conciliation to filing of a complaint. On the one hand, it has been our experience that the EEOC will sometimes choose not to move forward with litigation even though it has attempted conciliation, and a longer period could mean that the EEOC is considering whether it has the resources and appetite to the litigate the claim. Employers also can use this time to prepare for any anticipated litigation. On the other hand, as time passes, the memories of witnesses will continue to fade and it may be more difficult to ensure that relevant records are maintained. This is particularly so where the precise theory the EEOC may choose to litigate is not clear to the employer. When that is the case, it may be useful for employers to document what they understand the potential claims to be so that they may retain possible laches arguments if a complaint eventually is filed. Any case that the EEOC takes to litigation proceeds through both of these steps. Taking both together, the average time from determination to complaint is 262 days. Nonetheless, there continue to be meaningful differences from one EEOC District Office to another. The EEOC’s Memphis District Office is the fastest. On average, it took just 83 days to move from issuing a determination to filing a complaint. The next fast office, Indianapolis, took more than twice that amount of time, averaging 168 days. It is followed by Atlanta (200 days), Miami (209 days), and Dallas (230 days). On the slower side are the EEOC’s Charlotte District Office, which on average took more than 350 days to move from determination to complaint. It is followed by St. Louis (321 days), Phoenix (320 days), and Houston and San Francisco (both 300 days). While each charge and investigation moves at its own pace, there are discernible trends evident in the data. Employers trying to gauge whether the EEOC is teeing up a charge for litigation should remain mindful of which EEOC District Office will be responsible for filing suit and what time it is on the EEOC’s fiscal year clock.