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EEOC Performance in 2011, What it Could Mean for Employers in 2012

by Ian G. Nanos

The Equal Employment Opportunity Commission (“EEOC”) recently issued its Performance and Accountability Report for Fiscal Year 2011 As reported by the EEOC, 2011 was a record year.  A quick review of these highlights, as well as the pending docket, reveals a growing trend and employers should pay attention.

First the highlights.  During FY 2011, the EEOC received a record number of discrimination charges – nearly 100,000 against private sector employers alone.   More importantly, the EEOC also recovered a record $364 Million through administrative enforcement.  Even with this high volume of new charge activity, the EEOC made a lot of progress closing cases – as one could expect given the record high recovery – and managed to reduce its charge backlog by 10%.  This reduction is also a significant development because the EEOC has not been able to reduce its pending charge backlog from one year as compared to the previous year since it did so back in FY 2002. 

Employers should not let any of this give the wrong impression, however, because the EEOC still has over 78,000 pending charges at the close of the fiscal year.  An analysis of the types of cases that were closed, as well as those that are still pending, reveals a continuing trend: the EEOC’s focus on its Systemic Program.  The EEOC Systemic Program, began as an initiative in 2006 aimed at making it an agency-wide priority to identify, investigate and, if necessary, litigate claims of systemic discrimination affecting large classes of individuals.

As of the close of the Fiscal Year, September 30, 2011, the EEOC had 580 systemic investigations under way involving more than 2,000 charges.  The EEOC also had 443 cases on its active docket, 63 of which involve challenges to alleged systemic discrimination.

What does this mean for employers?

As underscored by the FY Report, success for the EEOC is measured in terms of both monetary recovery as well as the volume of case resolution. This becomes particularly important as the EEOC faces a potential budget cut and may see a reduction in its resources, which will force the EEOC to become more selective in both case assessment and selection.

The EEOC is clearly busy, but it will continue to align its resources to pursue enforcement initiatives in areas where it believes it can achieve those monetary results, including through settlement or conciliation.  Employers should be aware of the EEOC’s continued emphasis on its systemic initiatives and be prepared to act if the EEOC begins to show an interest.