Employers Bracing for End-of-Year Surge in EEOC Complaints

Shannon Green

Corporate Counsel

08-02-2012

With just eight weeks left on the federal government’s 2012 fiscal calendar, employers are bracing for rapid-fire litigation from the U.S. Equal Employment Opportunity Commission. Gerald Maatman Jr. , co-chair of Seyfarth Shaw’s complex discrimination litigation group, says the agency has entered the annual “red zone”—a period when its lawsuits surge.

“It’s a countdown to the EEOC’s end of the year,” says Maatman.

In fiscal year 2011, the agency filed 175 of its 261 merits lawsuits on behalf of claimants (or 67 percent) when it was in the red zone, according to Maatman. On September 30 alone—the very last day of the fiscal year—the EEOC issued discrimination complaints against 18 companies, including Safeway Inc. and The Finish Line Inc.

Does the EEOC expect to see the same level of red zone activity this year?

The agency won’t post a preliminary tabulation of this year’s filings until sometime in October, but Seyfarth’s lawyers have been keeping an informal count based on EEOC press releases. Compared to this time last year, Maatman says filings appear to be on course with the 2011 numbers.

“The EEOC is filing lots of lawsuits,” he says. Maatman has been defending employers in EEOC cases for more than 30 years. More and more often, he says the agency is filing complaints alleging discrimination against groups of workers.

Like many public and private organizations faced with tightening budgets, the EEOC has been under pressure to do more with less. Last September, the Senate Appropriations Committee approved a $359 million agency budget for fiscal year 2012, which was $7.3 million less than it gave the EEOC the year before. Maatman says that the EEOC is making an effort to maximize its limited financial resources—the agency is focusing on bigger cases and “targeting industry leaders and issues that impact many employers.”

So how should employers in the EEOC’s cross hairs react to contact from the agency?

“Typically these complaints don’t come as a surprise,” says Maatman. But once an employee has filed a charge with the Commission, Maatman says it’s crucial the employer not waste any time in getting teams from HR and legal involved. “When the EEOC is investigating,” he says, “it’s not a partner, it’s an adversary.”

The best-case scenario, of course, is to resolve any discrimination claims before an employee goes to the EEOC. “Many problems can be nipped in the bud,” says Maatman.

If employers don’t have robust internal controls in place to detect and deal with discrimination early, they should. Employers need to be monitoring the pulse of the workplace, notes Maatman. He recommends establishing complaint lines and having other policies that encourage employees to voice their concerns to the employer.

“You want to get to the bottom of what happened before the employee feels aggrieved enough to march down to the EEOC,” he says.