EEOC Announces Over 45 Lawsuits in the Past Week
Earlier this year, Congress appropriated an extra $15 million for the EEOC in the 2009 Omnibus budget bill. Additionally, the Obama Administration recently announced its budget for Fiscal Year 2010, which seeks $367 million for the EEOC—an increase of almost $40 million over the current budget. In part, this additional funding is designed to allow for increased enforcement.
Although EEOC litigation has actually declined steadily since 2004 (from 421 cases filed in 2004 to only 325 cases filed in 2008), there has been a recent flurry of litigation activity. Within the month of September, the EEOC filed over 90 lawsuits, and, within the last week alone, the Commission filed over 45.
Historically, the Commission has developed points of emphasis with regard to its enforcement of the law. Upon reviewing the recent lawsuits, and based upon Frost Brown Todd's past experience, a few trends become apparent.
- National origin discrimination, retaliation, and pattern or practice cases remain among the EEOC's top priorities. This means that when such a charge is filed with the EEOC, the Commission will categorize it as a "highest" priority based solely on the category or type of discrimination, and not necessarily based on the facts of the particular charge.
- The EEOC appears to be more interested than ever in disability cases. This trend is relatively unsurprising given the significantly broader protections afforded to employees by the ADAAA. Although the trend is unsurprising, it is still significant; employers need to be aware of and prepared for such potential claims. The Commission appears especially concerned with failure to hire and refusal to accommodate cases.
Also noteworthy is the fact that some of the recent collective/class action disability cases involve termination decisions made both before and after January 1, 2009, the effective date of the ADAAA. It remains to be seen how the courts will treat these cases that apparently involve analysis of some plaintiffs' claims under prior ADA law and other plaintiffs' claims under the ADAAA.
- The EEOC has taken a renewed interest in pregnancy discrimination cases. Such cases are being enforced under either Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act or the ADA (for pregnancy-related disabilities).
- Sexual harassment in the workplace represents a significant portion of the recently filed suits, but especially noteworthy are the cases involving sexual harassment against young people. All employers, but especially those which employ young people, should be aggressive in responding to allegations of sexual harassment.
- Age discrimination suits represented a smaller, but still significant portion of the recently filed suits.
Overall, the lawsuits were filed against both large and small employers from across the country.
Likely, we expect the EEOC to continue to be extremely aggressive in pursuing litigation as an enforcement mechanism. EEOC reports indicate that employee discrimination complaints continue to rise. This, coupled with the Obama Administration's request for additional funding for enforcement purposes, indicates that all employers should be concerned about mitigating potential lawsuit risk.
Specifically, employers should consider reviewing their internal compliance policies and procedures, engaging in employee training exercises, and/or conducting internal audits in order to avoid being the subject of a Commission investigation or enforcement action.
You can find a list of the recent EEOC lawsuit filings here.
If you have any questions about the impact of the EEOC's increased enforcement to your business, please contact Katie Wright, David Hoskins or any other member of the Frost Brown Todd Labor and Employment Practice Group.