Many businesses are understandably focused on simply staying in business in the current COVID-19 environment. The hurdles facing businesses are beyond the scope of this article. However, as an attorney representing clients in employment-related matters, my job is to remind all business owners to remember their labor/employment obligations.

In April 2020, I wrote about employers remembering traditional anti-discrimination laws while navigating the federal COVID-19 legislation that was enacted in March. As expected at the time of that article, the U.S. Equal Employment Opportunity Commission (“EEOC”) has remained active despite the pandemic.

On November 16, 2020, the EEOC issued its Annual Report for fiscal year 2020. As documented by the Report, the EEOC (perhaps surprisingly) collected $535.4 million in financial recoveries for victims of discrimination during fiscal year 2020. This amount includes settlements, conciliation, and litigation recoveries, including several multi-million dollar recoveries. According to the Annual Report, this amount includes $106 million as a direct result of litigation resolutions—the highest amount recovered by the EEOC since 2004.

Most observers anecdotally expect the EEOC to be more active under a Democrat president administration. However, it is notable that these historic recovery levels occurred under the Republican Trump administration. More in line with historical expectations is related data from the EEOC’s Annual Report regarding the agency’s private sector charge inventory. Those statistics are as follows:

  • 2015—74,408 (EEOC private sector charge inventory)
  • 2016—73,508
  • 2017—49,607
  • 2019—43,58
  • 2020—41,951

These charge inventory statistics could indicate that despite record monetary recoveries, the EEOC has become less active (or, and possibly to the EEOC’s credit, more efficient in resolving discrimination charges), during the Trump administration.

Although these statistics may have stand alone interest, applying the trends to a presumed Biden administration could heighten the risk to employers. If the trend for higher monetary recovery continues, and is then coupled with the historical expectation for a more active EEOC under a Democrat administration, then businesses may expect an increase in EEOC enforcement activity in the next four years. That increase itself would cost businesses time and money. If we extrapolate the heightened dollar recovery to increased enforcement activities, then exposure to American businesses could reasonably approach record levels.

Although many observers expect the EEOC to be more active under a Biden administration, there is no certainty that such increase will actually occur. As indicated by its record dollar recoveries in FY2020, the EEOC has certainly remained active under the Trump administration. Additionally, on June 15, 2020, the U.S. Supreme Court, despite having a majority of Republican-nominated justices, decided in Bostock v. Clayton County, Georgia that the anti-discrimination requirements imposed by Title VII extend to sexual preference and gender identification. Although not as recent, it was a Republican president, George H.W. Bush, who signed into law the Americans with Disabilities Act in 1990. In other words, although observers might think they can predict the direction of the EEOC under a Biden administration, uncertainty still remains.

At the end of the day, it remains incumbent upon employers to remember their Title VII/discrimination obligations. These obligations might increase during the Biden administration, as the EEOC is certainly expected to expand enforcement activities. That leaves employers with the standard nuts and bolts of assuring Title VII compliance and avoiding unnecessary exposure. This can include taking steps such as:

  • Updating anti-discrimination policies and handbooks to include sexual preference and gender identification pursuant to the 2020 U.S. Supreme Court decision;
  • Maintaining and updating employee handbooks and policies to address the Families First Coronavirus Response Act, if applicable;
  • Maintaining and updating sex harassment policies; and
  • Strengthening race and religion anti-harassment language in handbooks and policies.

Remaining vigilant and taking steps such as these will help protect businesses from unnecessary risk regardless of the EEOC’s direction in the next four years.