The United States Equal Employment Opportunity Commission (“EEOC”) has implemented its new strategic plan for the fiscal years 2012 to 2016. The plan is based on the following three strategic objectives:
1. Combating employment discrimination through strategic law enforcement;
2. Preventing employment discrimination through education and outreach; and
3. Delivering excellent and consistent service through a skilled and diverse workforce and effective systems.
Below is an overview of each of the plan’s objectives, as well as examples of the practical impact this new plan will have on employers and their employment practices liability insurance carriers.
I. Combating Employment Discrimination through Strategic Law Enforcement
The EEOC enforces Title VII, Age Discrimination in Employment Act (“ADEA”), Equal Pay Act, Genetic Information Non-Discrimination Act (“GINA”), Americans with Disabilities Act (“ADA”) and Rehabilitation Act. Enforcing these laws to prevent unlawful discrimination and retaliation will continue to be its top priority from 2012 to 2016, and it will utilize investigations, mediations or conciliations, and litigation mechanisms to do so. EEOC investigations typically end when the EEOC issues a notice of dismissal and right to sue letter thereby giving the charging party 90 days to file a lawsuit under the federal statutes that the EEOC enforces (the 90-day deadline does not apply to state law claims).
On some occasions, the EEOC will issue a cause determination, meaning that during the investigation the EEOC finds reasonable cause to believe unlawful discrimination or harassment occurred. A cause determination can be problematic because courts have held that EEOC cause determinations are generally admissible at trial under the hearsay exception for public records. Cause determinations by the EEOC are typically the exception as opposed to the norm. For example, in Florida, the EEOC estimates that only 7% of charges result in cause determinations, and the investigator usually gives the employer warning before formally issuing the cause determination thereby giving the employer one last chance to submit new evidence or potentially settle the claim through voluntary EEOC conciliation or otherwise. The EEOC voluntary conciliation program is likely to be offered in more EEOC jurisdictions in the upcoming years as a method for resolving these charges as the EEOC does not have enough staff to investigate the increasing number of charges that are filed each year.
Although the exception, the EEOC also files lawsuits in court on behalf of plaintiffs. For example, the EEOC filed nine lawsuits on behalf of plaintiffs in Florida in 2011. The EEOC’s goal is to double the number of lawsuits that it files in Florida in 2012. This trend of increased lawsuits brought by the EEOC is likely to continue in an attempt to decrease discrimination through public awareness created by EEOC lawsuits. The EEOC plans to focus on representing plaintiffs in class action lawsuits in which multiple victims are subjected to unlawful discrimination, and also cases on behalf of individual plaintiffs who are subjected to the most egregious discrimination by employers.
Practical Impact – We recommend participating in the EEOC’s voluntary conciliation/mediation program for most claims to see if they can be resolved for a nominal amount before substantial defense fees and costs are incurred. Even if the claim is not resolved, you still learn more about the claim by hearing from the claimant or his or her attorney. EEOC conciliation is also very cost effective as the EEOC mediator does not charge a fee and the claims representative is not required to attend in person. Also, if the EEOC informs the employer that a cause determination is coming, we recommend immediately submitting new evidence and potentially arranging for witness interviews to the extent the employer is not in the wrong. If the claim appears to have substantial weaknesses and a cause determination is pending, then it makes sense to strongly consider early resolution if the settlement amount is reasonable before incurring substantial attorneys’ fees and costs in defending a problematic claim.
II. Preventing Employment Discrimination through Education and Outreach
The EEOC targets it education and outreach program to those persons who historically have been victims of employment discrimination and have not been equitably served by the Commission. The EEOC believes it is important to target subsets of people within protected classes, such as persons of color under the age of 30 or low-skilled workers and new immigrants who may be unfamiliar with the nation’s equal employment laws. It appears that more employees are knowledgeable about the EEOC than ever before. For example, the EEOC reported a record number of charges of discrimination, 99,947, in the United States in 2011, which broke the previous year’s all-time record of 99,922 in 2010. The combined number of charges filed in 2010 and 2011 was almost 50,000 mo re than the combined number of charges filed in 2005 and 2006. In addition to increased awareness of the EEOC, the struggling U.S. economy and loss of jobs over the past several years is a strong contributing factor to the sharp increase in the number of charges filed.
Practical Impact – EEOC claims will likely continue to increase as more employees will learn about the EEOC as a vehicle for lodging a complaint against an employer or former employer, and the economy continues to struggle on its path to recovery. Employers also need to become more knowledgeable of the laws and more sensitive when dealing with employees as they continue to become more savvy and have an eye towards setting up a potential claim if the employment relationship sours. Employees are particularly savvy in setting up retaliation claims, where employees complain regarding discrimination or harassment in an effort to insulate themselves from an adverse employment action. If the employer does terminate their employment in close temporal proximity to their complaint, then the employee will allege that the termination was in retaliation for their protected activity that occurred when they complained of alleged discrimination or harassment. In 2011, the EEOC reported that retaliation claims were the most frequently filed charges, accounting for 37% of all charges filed with the EEOC.
III. Delivering Excellent and Consistent Service Through a Skilled and Diverse Workforce and Effective Systems
The EEOC will continue to employ a diverse workforce and strive to ensure that each staff member is highly skilled in an effort to make all EEOC interactions with the public timely, of high quality, and informative. The EEOC wants to improve customer service by implementing technology that will make it easier for charges of discrimination to be submitted and processed by the agency.
Practical Impact – As the gatekeeper to the court system for discrimination and retaliation claims, the EEOC will continue to serve an important role in the employment practices liability claims handling process from 2012 to 2016. As such, it is important that employers and claims handlers continue to fully cooperate with all EEOC staff members by providing them requested information and responding promptly to any communications from the EEOC at all times. The EEOC should not be treated as an adversary by employers, but instead should be embraced in order to build a positive relationship.
The materials contained in this Announcement are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney of your choice. If you would like to be added to the email list that receives Cole, Scott & Kissane’s Employment Law Update automatically, please e-mail Barry Postman or Brian Rubenstein.
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