On February 11, 2016, the EEOC released its Fiscal Year 2015 Enforcement Data (here), which tracked closely with the observations and analyses that we published for our readers over a month ago in EEOC-Initiated Litigation: Case Law Developments in 2015 and Trends to Watch for in 2016, Seyfarth Shaw LLP (January 2016).
So what is behind the numbers, and what do they mean for employers?
The answer is “plenty.”
First, the numbers show FOCUS. The data released by the EEOC confirms its continued priority on addressing allegations of systemic discrimination, which the EEOC defines as involving a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.
Second, the numbers show PRIORITY. Overall, the EEOC received 89,385 charges last year; within that universe of charges, 28,000 charges concerned systemic discrimination (31% of all charges received), as well as initiating 42 lawsuits involving multiple victims of discriminatory policies (29% of all lawsuits filed), including 16 lawsuits it characterized as systemic (11% of all lawsuits filed). Considering that the EEOC filed 142 merits lawsuits last year, systemic litigation is the headline here, as 42 of the lawsuits targeted “systemic issues.”
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The data released also confirmed that in 2015 allegations of unlawful discrimination based on disability remained a rapidly expanding area of the EEOC’s enforcement portfolio, with allegations of disability discrimination appearing in 26,968 charges (30.2% of all charges received). Disability claims increased a reported 6% over 2014, and surpassed allegations of discrimination based on sex, which appeared in 26,396 charges (29.5% of all charges received). Disability discrimination was second only to race for the number of charges received in 2015 (31,027 allegations, appearing in 34.7% of all charges received).
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Retaliation, which frequently is alleged in tandem with discrimination based on a protected characteristic such as race, sex age or disability, increased 5% and was the most common allegation made, appearing in 39,757 charges (44.5% of all charges received).
As we reported (here), the EEOC has turned up the heat on issuing new enforcement guidelines on retaliation before the end of the Obama presidency. These guidelines, a copy of which can be viewed here with accompanying press release here, focus on expanding activities enforceable by the EEOC as “protected” to include participating in any way in internal investigations, requesting wearing a head scarf as a religious accommodation, discussing pay and engaging in activities which may be considered concerted activities under the National Labor Relations Act.
The time period for public comment on the EEOC’s proposed enforcement guidelines ends February 24, 2016.
Implications For Employers
The EEOC’s 2015 data and proposed enforcement guidance clearly signal the EEOC’s intention to continue to pursue systemic claims, with a focus on disability, pay equity, religious accommodation and retaliation.
Employers should be vigilant to recognize potential vulnerabilities in these areas, and to enhance human resources and reporting functions to document solid management practices and avoid the risk of becoming embroiled in litigation.