Labor & Employment Law — 11/19/09

EEOC obtained $294 million in private sector relief, strengthened systemic program in FY 2009

The Equal Employment Opportunity Commission (EEOC) obtained unprecedented relief through its private sector administrative enforcement activities in fiscal year (FY) 2009, according to the agency’s annual Performance and Accountability Report (PAR). The agency’s private sector charge receipts also reached near record-breaking numbers, and its systemic discrimination program continued to be a chief priority, with 19 new cases filed in FY 2009.

Charge processing. In FY 2009, through its private sector administrative enforcement activities, the EEOC secured more than $294.1 million in monetary benefits — the highest level of monetary relief ever obtained through the administrative process. The agency obtained $274.4 million in FY 2008. Overall, the EEOC secured both monetary and non-monetary benefits for more than 17,491 people through charge processing.

During the past fiscal year, the EEOC received 93,277 private sector charges of discrimination, a two percent decrease from FY 2008 — but still the second highest level of receipts in the past 20 years. The agency also received 2,728 charges through net transfers from state and local Fair Employment Practices Agencies. The EEOC obtained 85,980 resolutions, with a merit factor resolution rate of 20.3 percent. (Merit factor resolutions include mediation and other settlements and cause findings, which, if not successfully conciliated, are considered for litigation.) The merit factor resolution rate for FY 2008 was 21.4 percent.

Charge inventory. In recent years, the EEOC’s charge inventory rose significantly, according to the PAR. From FY 2004 to FY 2005, the inventory rose by 3,596 charges — a 12 percent increase. The increase in each subsequent fiscal year, from FY 2005 through FY 2008, was even larger: from FY 2005 to FY 2006, it increased by 6,384 charges, a 19 percent increase; from FY 2006 to FY 2007, it rose by 15,024 charges, a 38 percent increase; and from FY 2007 to FY 2008, it swelled by 18,981 charges, a 36 percent increase. Overall, comparing the inventory in FY 2002 to the inventory in FY 2008, pending charges rose by 44,910, an increase of 155 percent. As of the end of FY 2009, the inventory increased by 11,817 charges to 85,768 — 15.9 percent increase over the number of charges pending at the end of FY 2008.

The EEOC attributes the rise in inventory in part due to a decline in the number of frontline investigators from FY 2000 through FY 2008. During this time period, the agency lost a total of 271 frontline investigators — more than 33 percent of its total investigative workforce. Due to budgetary constraints, at the time, the EEOC did not backfill these jobs. As the number of investigators declined, the charge inventory rose - so did the length of time it took to resolve charges.

In FY 2007, receipts rose by nine percent over the previous year and in FY 2008, they rose again by 15.2 percent over FY 2007. Although the Commission received two percent fewer charges in FY 2009 compared with FY 2008, the number of receipts in FY 2009 is still the second highest in the past twenty years.

The EEOC suggests that the charge increase may have resulted in part from the agency becoming more accessible. Individuals can now contact the agency by phone, by mail, by email, by going to the EEOC website, or by visiting EEOC field offices. This accessibility, which is a positive development for the agency’s stakeholders and victims of discrimination, in all probability has resulted in the filing of additional charges.

Reducing inventory. The EEOC took a number of steps in FY 2009 aimed at reducing its charge inventory, and these efforts will continue into 2010, the PAR indicates. The agency’s plans include more aggressive hiring of front-line staff; reinvigoration of the Commission’s Priority Charge Handling Procedures (including a significant agency-wide training initiative); renewed emphasis on pre-charge counseling; and identifying and implementing best practices in charge handling.

Notably, by the end of FY 2009, the agency had authorized hiring of at least 125 new investigators and six new mediators, most of whom were on-board at the start of FY 2010 (the fiscal year began October 1, 2009). By the end of FY 2009, the EEOC had hired 155 net new hires, in addition to backfilling vacancies that had occurred. Pending finalization of the FY 2010 and FY 2011 operating plans, other new hiring may be authorized. This new staff, when fully productive, is expected to process over 15,000 charges a year, which will significantly impact the agency’s inventory.

Training for expanded enforcement. The PAR also discusses the training required pursuant to the EEOC’s expanded enforcement duties. To prepare front line staff for the significant statutory changes brought by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), the Genetic Information Nondiscrimination Act of 2008 (GINA), and the Lilly Ledbetter Fair Pay Act of 2009, the Office of Legal Counsel created and delivered a customized training program for investigative and legal unit staff at the EEOC’s field offices. The program provides practical information on how these statutory developments affect investigatory and enforcement duties. The training program will continue in FY 2010 and expand to include headquarters and employees in other program offices.

Litigation. In FY 2009, EEOC field legal units filed 281 merits lawsuits and 32 subpoena enforcement and other actions, according to the PAR. Of these new filings, 170 were individual suits and 111 were class suits. Legal staff resolved 319 merits lawsuits for a total monetary recovery of $80,628,935. (Merits suits include direct suits and interventions alleging violations of the substantive provisions of the statutes enforced by the EEOC and suits to enforce administrative settlements.)

Of these resolutions, 249 contained Title VII claims, 40 contained Americans with Disabilities Act (ADA) claims, 38 contained Age Discrimination in Employment Act (ADEA) claims, and five contained Equal Pay Act (EPA) claims. The EEOC also resolved 28 subpoena enforcement and other actions during the fiscal year.

In direct, indirect and intervention lawsuits by statute, the EEOC recovered $63,415,742 in Title VII resolutions, $6,745,543 in ADEA resolutions, $9,548,761 in ADA resolutions, $20,000 in EPA resolutions and $898,889 in resolutions involving more than one statute. At the end of FY 2009, the number of cases on the EEOC’s active docket involving multiple aggrieved parties or challenges to discriminatory employment policies was 226, or 46 percent of the total year-end caseload.

Systemic Initiative. In April 2006, the EEOC launched its Systemic Initiative, which prescribes comprehensive measures to improve all aspects of the agency’s work in combating systemic discrimination. The EEOC’s objective is to strengthen and modernize its nationwide approach to identifying, investigating, and litigating systemic cases, which a systemic task force report defines as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location.”

Greater expertise. Systemic cases are significantly more complex and require greater resources, more highly trained investigators and attorneys, and sophisticated expert analysis by statisticians, industrial psychologists, and labor market economists, the PAR points out. To begin addressing these needs, in FY 2009, the EEOC devoted significant resources to start developing a strong systemic-oriented skill set in its staff. Several experts were hired in the fields of statistics, industrial psychology and labor market economics who will partner with district offices to work on larger cases.

Databases linked. The EEOC also successfully linked its two major databases: the EEO-1 reports and IMS, its charge and case management database, according to the PAR. An EEO-1 analytical tool (EEO-1 Analytics) was added to the IMS application that allows investigators and attorneys to compare an employer with others in the same geographic area and industry. This will allow investigative and legal staff to better analyze workforce data, which in turn will lead to better identification and development of systemic cases.

Chief priority. The EEOC’s Office of General Counsel (OFGC) continues to make implementation of the systemic program a chief priority. In FY 2009, the Commission filed 19 new systemic cases, each of which is expected to benefit potentially hundreds of victims of discrimination, the PAR advises. These cases cover a broad range of current issues, such as:

Use of credit history and criminal conviction records to exclude applicants for employment; and
Use of inflexible leave policies to deny reasonable accommodations to qualified employees with disabilities.

The PAR provides a sampling of significant resolutions of systemic discrimination lawsuits in FY 2009:

EEOC v Gold’n Plump Poultry, Inc and EEOC v The Work Connection (D Minn) (resolved March 31, 2009). In companion suits against a mid-west poultry processor and a staffing agency, EEOC alleged failure to accommodate Muslim employees’ religious prayer requirements and objection to handling pork. A consent decree provided $215,000 to 128 employees, and required the employer to add a 10-minute break, the time of which will vary according to the daily Muslim prayer schedule. The staffing agency was required to pay $150,000 to 28 applicants, along with offering placement with the employer as positions become available.
EEOC v Pitt Ohio Express, LLC (NDOhio) (resolved January 22, 2009). A suit against a regional transportation carrier alleged failure to hire women as truck drivers and dockworkers at four Ohio terminals, as well as failure to retain employment applications as required. A five-year consent decree provided a $2.43 million class settlement fund, and 40 offers of employment to eligible claimants (26 for drivers and 14 for dockworkers).
EEOC v Area Erectors, Inc (NDIll) (resolved May 27, 2009). A midwest steel and precast concrete erection company discriminated against an apprentice ironworker and a class of African Americans in union referrals when they were laid off or fired after much shorter periods of work than white referrals; the company also failed to file EEO-1 reports. The consent decree provided $630,000 to be allocated among 24 claimants and immediate or priority reinstatement. EEOC named seven unions as Rule 19 nonaligned parties, all of whom were signatories to the decree, which gave the decree’s mandates priority to the extent they conflict with any provision of the unions’ collective bargaining agreements.
EEOC v Sears, Roebuck and Co (NDIll) (resolved September 29, 2009). EEOC filed suit against a national retailer alleging that it failed to accommodate and discharged a class of employees with disabilities whose leave needs exceeded an inflexible one-year maximum workers’ compensation leave policy. A consent decree establishes a $6.2 million settlement fund to be allocated by the EEOC among about 400 qualified claimants. The decree further provides for revision of the employer’s workers’ compensation and reasonable accommodation policies to ensure compliance with the ADA.
EEOC v First Wireless Group, Inc (EDNY) (resolved October 29, 2008). A suit against a New York cell phone re-manufacturer alleged that a class of Hispanic employees was paid lower wages than similarly-situated Asian employees and then given unequal discipline and discharged in retaliation for complaining. A consent decree awarded $435,000 in back pay or compensatory damages to 38 claimants plus 8 hours of annual training to specified management staff and review of the compensation system to ensure that it does not discriminate against Hispanic employees.
EEOC v Allstate Ins Co (EDMo) (resolved September 11, 2009). EEOC sued a national insurance company for implementing a rehire moratorium policy, following a company-wide reorganization plan that had an adverse impact on former employee-agents who were 40 years of age or older. A settlement order provided for $4.5 million in back pay to be paid into a settlement fund and distributed in EEOC’s sole discretion.
EEOC v L&T Int’l Corp et al (DNMarI) (resolved July 28, 2009). Four related suits against a garment manufacturer alleged discrimination on the basis of national origin, age, pregnancy, and retaliation. The national origin claims asserted that a class of Filipino packers was discriminated against in favor of Chinese workers, confined to work groups segregated by national origin, and subjected to adverse treatment concerning overtime opportunities and lunch conditions. Two consent decrees resolved the four lawsuits and provide for a total of around $1.7 in compensatory damages to 177 individuals (including interveners).

To accomplish the goals of the systemic initiative, the OGC expects the composition of its litigation docket to shift over time to fewer small, individual cases and more cases on behalf of larger groups, according to the PAR. While this is leading to a decline in the total number of lawsuits filed each year, compared to previous years, the OGC anticipates that the overall impact of agency litigation will be enhanced as larger cases are filed and resolved. Nonetheless, individual cases, particularly those affected by new legislation, such as the ADAAA, and the GINA, will be an important component of the agency’s docket. All suits will continue to be strategically selected to have impact beyond their individual circumstances.

The EEOC FY 2009 Performance and Accountability Report is posted online at the agency’s website at: www.eeoc.gov/eeoc/plan/upload/2009par.pdf.

Labor & Employment Law — 11/19/09

EEOC obtained $294 million in private sector relief, strengthened systemic program in FY 2009

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