Information gleaned from the filings by the Equal Employment Opportunity Commission ("EEOC") for its fiscal year 2013, which ended September 30, shows a very decided emphasis on cases arising under the Americans With Disabilities Act ("ADA") and cases alleging sex bias, which include sex and pregnancy discrimination. The EEOC filed 134 lawsuits in 2013 (up from 122 in 2012, but down from 177 in 2011). ADA cases made up 36% of those filings, and sex bias claims made up 31% of the filings.
It is interesting to compare these statistics with the "national enforcement priorities" the EEOC set forth in its Strategic Enforcement Plan ("SEP"). The EEOC stated in the SEP that it had six priorities:
- Eliminating barriers in recruitment and hiring.
- Protecting immigrant, migrant, and other vulnerable workers.
- Addressing emerging and developing issues.
- Enforcing equal pay laws.
- Preserving access to the legal system.
- Preventing harassment through systemic enforcement and targeted outreach.
The actual filing numbers do not reflect the professed priorities. Equal Pay Act claims, one of the six priorities, made up only 3% of the lawsuits filed, for example. Indeed, the only purported priority reflected in the actual filing numbers is the sixth priority, which would include the sex bias lawsuits shown in the statistics. The filing of such an overwhelming number of ADA cases, however, is simply inconsistent with the EEOC's SEP.
In relatively good news for employers in Oregon, Washington and Northern California, the EEOC's San Francisco District, which covers all of these states, saw the filing of only 8 lawsuits by the agency. In contrast, the Charlotte, Chicago and Philadelphia Districts saw the filing of 62 lawsuits by the agency, or approximately 45% of the total number of filings.
What do these statistics mean for employers? We believe employers can take three lessons from this information.
First, the fact that these filings are on the rise warns us to expect the EEOC will be actively pursuing litigation on behalf of current and former employees for the foreseeable future. It is therefore as important as ever that employers comply with the myriad of confusing responsibilities the employment laws impose upon them. To do so, employers should seek counsel and have training for their managers and supervisors to avoid inadvertent violations of employment laws.
Second, employers should attend closely both to the areas of the law where the EEOC is filing the most cases and to the six national enforcement priorities the EEOC has identified in the SEP. We expect the EEOC to continue to file ADA and sex bias claims at high rates, but we also believe it likely that the EEOC will turn to its other professed priorities in the near future. Employers therefore need to take particular care to avoid issues in those areas.
Third, employers should immediately seek counsel upon receipt of an EEOC (or state equivalent) charge. It is from these charges that the lawsuits arise. Engaging counsel at the outset when a charge is filed lessens the risk that the matter will turn into a lawsuit by the agency and increases the chances that a charge will be dismissed. When that happens, the employee is not represented by the government with all of its resources and power but must instead decide whether to pursue a private action and must retain an attorney to do so.
As always, Tonkon Torp's team of Labor & Employment lawyers is ready to assist with EEOC charges in any way necessary.