I’ve posted links to the first two articles by EEO Legal
Solutions looking at the EEOC’s Fiscal Year 2012 Performance and Accountability
Report. Here, we finish up the series with a look at the final article, which seeks
to predict future EEOC policy and provide some takeaways for employers and
employment law attorneys.
In general, the biggest takeaway seems to be that in 2012
the EEOC took in fewer cases, resolved fewer charges, reduced its backlog less,
and filed fewer lawsuits, but still managed to collect its largest amount of
money ever from employers. The author states that the EEOC was able to do this
by transforming more cases into multi-plaintiff class action suits that
resulted in huge settlements. This approach has allowed the EEOC’s declining
productivity to still yield impressive financial results.
The EEOC has also used its intake procedure to sharpen its
focus on systemic matters that can be combined into class action cases. The
Commission divides its complaints in order to separate meritorious claims from
those that are not worth pursuing, and it marks those that fall within an
enforcement priority. The author also notes that many employment law defense
firms fail to tailor their responses to the type of claim the EEOC is pursuing,
instead preferring to overbill clients through an unrealistic portrayal of the
Because of the EEOC’s focus on bigger lawsuits, employers
need to be more adept at realizing what charges pose a real problem, and which
ones can be dealt with through in-house action and participation in mediation.
Employers should be on the lookout, however, for EEOC charges alleging that a
neutral policy is causing systemic discrimination- this is a current area of
emphasis and one that requires skill to defend.
The EEOC commonly uses huge settlement requests (that are
nonetheless lower than the substantial cost of defending a lengthy lawsuit) to
encourage employers to settle early. Employers should not be afraid to fight back,
however, when the EEOC’s case seems to go against established precedent or the
Commission’s own Guidelines.
Understanding that the EEOC is focused on money
can help employers improve their employment practices and make legally and
fiscally sound litigation decisions. The EEOC is focused on early settlements
to boost its monetary take, and thus employers need to be discerning in separating
viable charges from those where some resistance may be valid. Finally, when
faced with large multi-plaintiff litigation, employers should contact an
attorney for guidance.