EEOC Ends Fiscal Year 2021 With Increased Filings In September As Commission Recovers From Pandemic Slowdown | Seyfarth Shaw LLP


Synopsis of Seyfarth: Following the decline in the EEOC’s fiscal year 2020, in which the Commission made significant changes to many of its programs amid the global COVID-19 pandemic and changes in leadership, during the In fiscal 2021, the EEOC’s litigation enforcement activity showed signs of recovery after the persistent pandemic. . The number of cases filed by the EEOC has increased in a respectable recovery to pre-pandemic levels, projecting a busy year for the Commission and employers in fiscal 2022.

For most of the past 25 years, the EEOC’s fiscal year has ended with an increase in last-minute lawsuits. August and September deposits often eclipsed the rest of the year combined. After a “sluggish year” in fiscal 2020 when only 33 lawsuits were filed in September, the end of fiscal 2021 represented a return to form, with 59 lawsuits filed in September (similar to the 52 filed in September). September in fiscal 2019, and 84 in fiscal 2018). At the time of posting this blog post, the EEOC has filed a total of 114 cases in fiscal year 2021, which includes 111 substantive lawsuits and 3 pending enforcement actions. This total number of filings is greater than the total of 101 lawsuits filed last year (see here), but still less than the two previous years (see here and here).

Cases filed by district offices of the EEOC

In addition to tracking the total number of filings, we’re closely monitoring which of the EEOC’s 15 district offices are most actively filing new cases. Some districts tend to be more aggressive than others, and some focus on different ranking priorities. The following graph shows the number of complaints filed by EEOC district office.

The most notable trend in fiscal 2021 is the decline in deposits in some key regions compared to previous years. The New York district office has grown from 12 filings in fiscal 2020 to 6 filings in fiscal 2021. California district offices in San Francisco and Los Angeles, which totaled 16 new filings last year, declined in fiscal 2021, reaching a combined total of 13 new filings, including San Francisco’s drop from 10 to 6. The Indianapolis district office, which had a huge year in FY2020 with 13 deposits, returned to the middle of the pack with just 4 deposits this year.

On the other hand, the Philadelphia district office led the pack for new depots with 14 depots. Chicago’s filings went from 3 filings last year to 9 filings this year, and the Dallas district office jumped just as big from 5 filings in fiscal 2020 to 11 filings in fiscal year. 2021. The Birmingham District Office also made a notable step forward from 5 filings in FY2020 to 9 filings in FY2021. Overall, after a substantial decline in enforcement activity. Litigation in FY2020, the increase in filings in FY2021 suggests that the EEOC is back on track in most of its regional offices across the country.

Analysis of the types of lawsuits filed during fiscal year 2021

Each fiscal year, we also analyze the types of lawsuits filed by the EEOC, in terms of statuses and theories of alleged discrimination, to determine how the EEOC is shifting its strategic priorities. These numbers at least – when viewed as a percentage – are consistent with the numbers we’ve seen in recent years. The graphs below show the number of lawsuits under the law under which they were filed (Title VII, Americans With Disabilities Act, Pregnancy Discrimination Act, Equal Pay Act and Age Discrimination in Employment Act) and, for cases falling under Title VII, the theory of alleged discrimination.

Considered as a percentage, the distribution of cases filed by law has remained roughly constant compared to fiscal years 2020 and 2019. Title VII cases again constituted the majority of cases filed, representing 62% of all filings (tied with 60% for fiscal year 2020 and 60% for fiscal year 2010). ADA cases also made up a significant percentage of EEOC cases, totaling 36% this year, a slight increase from 30% in FY2020. There was only one case of discrimination. based on age filed in FY2021, down seven from FY2020.

Publication of application statistics in February 2021

On February 26, 2021, the EEOC released its full enforcement and litigation statistics for fiscal 2020 (available here). The decline in the number of charges seen by employers in 2018 and 2019 continued through 2020, with the number of charges reaching its lowest level since 1997. The importance of charges of gender discrimination observed in 2018 due to the #MeToo movement has all but disappeared, with charges of gender discrimination remaining in fourth place and dropping to their lowest number in more than 20 years. When the 2021 figures are released in the coming months, we don’t expect there to be much deviation from this trend.

However, the monetary benefits recovered by the Commission in fiscal year 2020 have increased. The EEOC recovered a record $ 535.4 million on behalf of alleged victims of discrimination. In comparison, the EEOC recovered approximately $ 486 million in fiscal 2019; approximately $ 505 million in fiscal 2018; and approximately $ 484 million for fiscal 2017. When final figures are released for fiscal 2021, we expect there will be a similar dollar amount of clawbacks.

January 2021 release Annual performance report

On January 19, 2021, the EEOC released its second Annual Performance Report (“APR”) for fiscal 2020 (see here). Essentially, it is a bulletin on the activities of the Commission, including its file on enforcement disputes. That said, the RPA is an analysis of the litigation goals and performance results of the EEOC, and contains important data points regarding the changing strategic goals of the EEOC and the potential future targets of an EEOC activity. increased application.

In what can be seen as a potential explanation for the decline in prosecutions, in fiscal 2020, the Commission conducted 6,272 mediations, resulting in $ 156.6 million in relief for claimants. parties charged. In addition, 766 federal sector mediations were conducted, which reduced the inventory of federal sector disputes. Overall, approximately $ 333.2 million in relief was recovered through mediation, conciliation and settlements.

When this data is released later for fiscal 2021, given court closures coupled with the increase in virtual mediations, we expect the number of mediations and recoveries to remain significant.

Implications for employers

Fiscal 2020 was a year of dramatic change at the EEOC due to the pandemic and leadership changes, and the aftermath of fiscal 2021 produced surprisingly similar results. Now that the new leadership regime and its structural changes are finally taking hold in a world that remains hampered by a persistent global pandemic, employers are once again facing an uncertain future in the employment landscape. It remains to be seen how the new priorities and strategies will impact their businesses in FY2022, particularly as many companies turn to remote working structures that may limit some of the common catalysts for discrimination on the market. workplace.

We will continue to monitor these changes closely and keep readers informed of developments. Our full annual EEOC Litigation Trend Analysis will be released at the end of the calendar year. As always, we will keep abreast of EEOC data in an ever-changing political environment and share lessons learned from fiscal 2021 to guide employers through the New Year.

Readers can also find this article on our EEOC Countdown blog here.

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