October 1 marked the beginning of a new federal fiscal year and an opportunity for observers to assess the activity of federal agencies, such as the Equal Employment Opportunity Commission (EEOC). While some expressed uncertainty that agencies such as the EEOC would continue to set new records with respect to filed lawsuits, the statistics now show that these expectations were inaccurate. Fiscal Year 2018 (i.e., October 1, 2017 through September 1, 2018) turned out to be the most active litigation year for the EEOC in recent history.
By far the most notable trend relates to litigation over sex-based discrimination, specifically sexual harassment. Employers should therefore ensure that their internal practices and policies with respect to sexual harassment are in line with best practices. Briefly, employers should educate their employees, especially supervisors and managers, about sexual harassment. Human resources departments must ensure that they respond to claims in a timely fashion and conduct thorough investigations, whether they use internal staff or commission a third-party investigation. Investigations, more than ever, should be planned and conducted in a way that an employer may extend protections over any documentation that is generated, as non-privileged documentation may later be obtained through discovery and potentially be used against employers in EEOC and private litigation. Of course, if sexual harassment claims are corroborated, immediate corrective action appropriate to the violation should result. Employers who do not maintain any sexual harassment policies, including complaint procedures, are particularly at risk as they will have extremely limited defenses available to them during litigation, which would not be the case if they simply maintained a basic grievance procedure.
Another trend relates to pay equity. Statistics show that filings under the Equal Pay Act have decreased. However, this does not mean that the EEOC has not stepped up its enforcement in this area. The Equal Pay Act only applies to unequal compensation as it relates to sex as a protected class. However, the EEOC may file similar unequal compensation cases under Title VII of the Civil Rights Act of 1964, which covers all other protected classes, such as race and national origin. With new state pay equity laws being passed every few months, employers should ensure that their compensation strategies do not directly or indirectly take into account or have a disproportionately negative effect on employees based on these protected classes. A pay equity analysis may be just the tool for employers to use in this complex field, and Employers Council offers pay equity analyses via its Affirmative Action Planning Services (AAPS) department.
EEOC statistics show that litigation is being pursued by the agency in all of its offices. But, perhaps due to population trends, the heaviest increase in litigation can be found along the coasts, with the Los Angeles and Philadelphia district offices carrying the highest burden in this regard. For employers in Colorado, Utah, and Arizona, whose district office is located in Phoenix, that office is near the top with respect to new case filings, and the office filed six more cases during Fiscal Year 2018 than in the prior year.
Fiscal Year 2019
It is likely that the trends described above, with respect to sexual harassment and pay equity, will continue into the next fiscal year. However, the EEOC still features a General Counsel who was appointed by the previous administration, i.e. President Obama, and may be subject to replacement. In addition, the EEOC still has two Republican commissioners who have been nominated but not confirmed. When these commissioners are confirmed, the agency’s agenda may or may not change, with some experts predicting that it will, especially with respect to sexual harassment lawsuits stemming from current social movements.