President Obama has proposed an increase in the EEOC's 2013 fiscal year budget due, in part, to an increasing backlog of cases. The increase in funding combined with the increase in charges that were seen in FY 2011 is going to mean that more cases are going to come to the attention of the EEOC.
The increase in funding is also going to be important for employers since the EEOC has announced that its priority will be to continue to litigate systemic cases. Those systemic cases have been, if recent activity by the EEOC is the guide, failure to hire cases.
For example, on January 31, 2012, the EEOC issued a press release announcing that it had filed suit against Mavis Discount Tire for failing to hire women. The press release also specifically solicits women who have been denied a job to join the litigation either as a party or a witness.
Failure to hire cases can be especially problematic as, in this day and age, where a lot of applications may be online. Regardless of whether an application is in electronic form or hard copy, employers are obligated under federal regulations to maintain applications and any records relating to the application, such as resumes and interview notes, for at least one year after the record is created. Best practices indicate that such records should be kept even longer as the applicable statute of limitations under Title VII, for example, is two years.
Employers should make sure that they have formal record retention policies governing the maintenance and destruction of all records related to personnel decisions.
