Since the inception of the EEOC’s Systemic Initiative in 2005-2006, the EEOC has traditionally launched large salvos of federal court complaints across the country in the waning weeks of its fiscal year (which closes on September 30 of each year). Last year, the EEOC’s filings ran the gamut of legal theories ranging from protected classes to targeted employment practices. As we reported here, the EEOC revved its engine in the last eight weeks of its 2011 fiscal year filing an astonishing 175 lawsuits in this compressed time period.
Fiscal Year 2012, however, was different.
The EEOC’s FY 2012 Filings
The Commission’s frenetic FY 2011 year appeared to prompt a different approach to litigation in 2012. The EEOC’s already strained budget was further tested by pursuing an unprecedented number of federal court filings and systemic investigations. FY 2012 called for a more thoughtful approach to its litigation strategy. The EEOC commented publically that it planned to file fewer large scale cases and develop a more coordinated national approach to the cases is did file. The EEOC’s goals left employers wondering if the last few weeks of FY 2012 would be another dash to the finish line.
On September 30, 2012, the EEOC’s fiscal year ended, and the tallies are now in. We understand that the total number of cases filed in FY 2012 is approximately 122. That means that the during FY 2012, the EEOC filed less half of the cases it filed in FY 2011. Although the EEOC did once again significantly ramp up its year-end filing machine, the year-end sprint started much later in the year - indeed, in August and September of 2012 alone, the EEOC filed 67 of its 122 lawsuits. This was a far cry from the 175 suits filed in the EEOC’s 2011 year-end filing period.
As we have discussed here, the driving force to the EEOC’s future litigation strategy is its Strategic Enforcement Plan. Looking at the EEOC’s FY 2012 filing statistics next to its Draft Strategic Plan provides insight into where the EEOC is headed. For instance, the types of EEOC claims filed in FY 2012 are notable. The EEOC has committed to focus on ADA and pregnancy issues, just to name a couple. A quick review of the EEOC’s FY 2012 filings suggests it has already been ramping up to make good on those committments:
Click here to see diagram.
What does this mean? This fiscal year, the EEOC plans to push for quality over quantity, with a more sniper-like focus on those cases it has already brought. We have already seen an EEOC that is learning how to litigate complex cases smarter and more efficiently. With fewer cases to litigate, and thus more resources to allocate to those matters, we expect the government will be an even more formidable litigation opponent.
What To Expect During FY 2013
The filing arising out of FY 2012 matters may not be over. The EEOC has publically stated that, while it may not have the same year-end push in FY 2012, the agency intended to charge out of the gates in FY 2013. We have seen the EEOC’s warning come to fruition. While the first week of October is usually an almost silent week for the agency, there have already been several fillings in the first week after the close of FY 2012. The EEOC’s path to filing cases during the remainder of FY 2013, however, remains turbulent in light of the upcoming presidential election. Although filing a federal court complaint is relatively inexpensive, staffing and litigating the EEOC’s 122 cases comes at a high price. To that end, President Obama recently signed into law a stop-gap budget to fund the EEOC $360 million - a modest increase over FY 2012 - from October 1st to March 27, 2013, apparently designed to cover the rest of any potential lame-duck presidency. A new administration may spell big changes for the EEOC. Even post-election priorities of the incumbent administration may still result in budget cuts, or possibly a resource windfall. The EEOC is waiting like the rest of us to see what happens next.
There are more lessons to learn from FY 2012. The EEOC will publish its official filing and charge statistics either this month or early November. Check back in with the Workplace Class Action Blog, as we will provide a more fulsome discussion upon receipt of the EEOC’s numbers. We are also keeping tabs on the EEOC as we wait for its third iteration of the Draft Strategic Plan, which will function as the blueprint for the Commission’s enforcement activity for the next several years. We have blogged about the Draft Plan numerous times (here, here, here, and here) and submitted two letters to the EEOC providing recommendations for ways in which it can better achieve its goals (available here and here). The Commission will likely publish the third draft of the Strategic Plan sometime this month. The significant revisions from first draft to second promises even more surprises in the third sequel to this important strategic plan. Stay tuned.
Readers can also find this post on our EEOC Countdown blog here.