The Equal Employment Opportunity Commission managed to do more with less in 2012, according to a report released Jan. 29 by Seyfarth Shaw that showed the agency scored a record haul from discrimination claims in 2012 even as it brought sharply fewer cases.
The study found that the EEOC collected $365.4 million in recoveries from discrimination claims in fiscal year 2012—-a $700,000 increase over 2011. According to Seyfarth, the highest-ever total is a result of the EEOC’s increased focus on pursuing larger, lengthier systemic discrimination cases, which the commission defines as "pattern or practice, policy, or class cases where the alleged discrimination has a broad impact on an industry, occupation, business, or geographic area." By the end of the 2012 fiscal year, systemic suits accounted for 20 percent of all of the EEOC’s active merit suits, a proportion that easily eclipsed the 14 percent reported last year. And the commission only expects that proportion to grow: Its strategic enforcement plan predicts that systemic filings will account for 22-24 percent of all pending lawsuits by fiscal year 2016.
The commission’s focus on more in-depth systemic lawsuits and the investigations that precipitate them came with a tradeoff: the EEOC only filed 122 new cases in fiscal year 2012, down more than half from 261 in 2011.
The EEOC has characterized its quality-over-quantity efforts as "enforcing the law more effectively," but another factor played into the agency’s downsized docket, according to Seyfarth’s Gerald Maatman. A series of employer-friendly decisions handed down by federal district court judges in 2011 criticized the EEOC’s "sue first, aim later" approach, and likely caused the commission to avoid filing premature or vague lawsuits, Maatman said.
"The EEOC seemed to have gotten out over the end of its skis in some instances by filing haphazard lawsuits," Maatman said. He cited as an example EEOC v. Peoplemark Inc., in which the defendant won $752,000 in attorneys fees from the EEOC after a federal judge in Grand Rapids, Mich., determined last March that the agency’s case was frivolous. (That ruling is now on appeal before the U.S. Court of Appeals for the Sixth Circuit.)
In the coming year, the report projects that the EEOC will ramp up its scrutiny of harassment allegations and its investigations under the Americans with Disabilities Act, riding a trend from 2012 in which the agency’s lawyers secured multiple seven-figure recoveries in disability discrimination cases. The report also predicts that the EEOC will continue to rely heavily on subpoenas against employers as springboards into pre-suit discovery, as has been its practice in recent years.
Maatman, for his part, said he believed that whatever the decrease in new filings by the EEOC, it will likely make up for with potency. "When the EEOC sues you, you still have the tiger by the tail," he said.
@|Claire Zillman, a reporter for The Litigation Daily, an affiliate of the Law Journal, can be contacted at email@example.com.