©2026 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2026 EDITION | 82 One important note if entering into an EEOC Settlement Agreement: because these are resolutions occurring before conciliation (i.e., before a Determination issues), they are not covered by the strict conciliation confidentiality rules mentioned above. Employers entering into these Agreements can and should insist on confidentiality provisions, which in practice are routinely accepted by the EEOC. EEOC Settlement Agreements were once a somewhat exotic resolution vehicle. No longer. Employers across the country have seen increasing efforts by the EEOC to obtain quick and easy “wins” for lower-stakes cases. In some instances, employers may wish to consider the reassurance an Agreement provides that it has closed the book on EEOC involvement in a particular matter. D. Trial Judgment Although EEOC trial victories are widely publicized by the agency, they are, in reality, quite rare. This, not necessarily because of the merits of any given action, but because the EEOC tries very few cases to verdict. As with the broader universe of employment law actions, the uncertainty of trial often drives the parties to pre-trial resolution. Indeed, according to Lex Machina’s 2023 Employment Litigation Report (the most recent report available), only 1.3% of all employment cases are actually tried to verdict.128 Monetary relief awarded by juries vary widely, depending on the number of claimants, the nature of the action, and the type of position at issue. Some of these trial verdicts are highlighted in Part III. The monetary relief in an EEOC-initiated action is no different than what a private litigant could be awarded in individual action, with the important exception that the EEOC cannot be awarded attorneys’ fees as a prevailing litigant. A more important distinction is non-monetary relief. Although non-monetary/injunctive relief can theoretically be sought in private litigation, few private litigants seek relief beyond backpay, front pay and compensatory, punitive and/or liquidated damages (depending on the statute at issue). The EEOC, on the other hand, routinely seeks non-monetary relief after a trial victory. The District Court Judge, and not a jury, awards any nonmonetary relief. The injunctive relief demanded by the EEOC often mirrors the elements sought in Consent Decrees (see above). A District Court considers a variety of factors when deciding what injunctive relief is proper after an EEOC trial win. To determine whether a post-trial award warrants the imposition of injunctive relief, courts primarily consider “whether the facts indicate a danger of future violations” of unlawful employment practices. E.E.O.C. v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1250 (10th Cir. 1999) If an employer intentionally engages in a practice whereby a “danger of future violations” exists, a court may find it necessary to grant injunctive relief. Id. The danger of recurrent violations must be “something more than a mere possibility, which serves to keep the case alive.” United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). But injunctive relief is not appropriate “when there is no proof of a pattern or practice of discrimination. E.E.O.C. v. RadioShack Corp., No. 10-CV02365-LTB-BNB, 2012 WL 6090283, at *6 (D. Colo. Dec. 6, 2012). A District Court in Colorado did not grant injunctive relief where there was “no reason to believe that the single unlawful act ‘will likely occur again.’” Id. Indeed, as one court noted, a finding that an employer “discriminated against one individual on the basis of disability” was not “standing alone, sufficient to warrant mandating the entire Department of Commerce post an anti-discrimination notice.” Id. Although the EEOC often seeks wide-ranging injunctive relief, Seyfarth’s survey of post-trial injunctive relief awards demonstrates that District Courts simply do not tend to award the breadth and depth of relief demanded by the Commission. In fact, in the past 10 years, most grants of injunctive relief after an EEOC trial victory consisted of a general prohibition on future discrimination, and training or policy modifications, if warranted. The majority of the injunctive relief imposed by the courts have been limited to two or three year period. Courts imposed an injunction period of more than three years in only a few cases, and these five year periods were not unexpected given the large compensatory or punitive damages involved. 128 Lex Machina did not publish the Employment Litigation Report in 2024 or 2025.
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