What Has the EEOC Been Up to Recently?

By Lehr Middlebrooks Vreeland & Thompson, P.C.

February 24, 2020

This article was prepared by JW Furman, EEO Consultant Investigator, Mediator and Arbitrator for the law firm of Lehr Middlebrooks Vreeland & Thompson, P.C. Prior to working with the firm, Ms. Furman was a Mediator and Investigator for 17 years with the Birmingham District Office of the U.S. Equal Employment Opportunity Commission (EEOC). Ms. Furman has also served as an Arbitrator and Hearing Officer in labor and employment matters. Ms. Furman can be reached at 205.323.9275.

The Trump Administration was finally able to put its senior leadership in place at the Equal Employment Opportunity Commission last year. New leadership in federal agencies always brings change, sometimes more than others. Little has been announced by the EEOC about new priorities or whether charge handling procedures will change. But we can put together some statistics as to the agency’s recent accomplishments.

The first change noticed was that gathering statistical information was a bit more challenging this year than in the past. Since at least 2013, the EEOC has issued a press release toward the end of each year entitled “EEOC Releases Fiscal Year 20(--) Enforcement and Litigation Data.” A standard format with similar information provided began in 2014. The press release has shown the numbers of charges filed, broken down by bases alleged, every year – from a high of 93,727 in FY 2014 to a low of 74,675 in FY 2019. FY 2013 – 2018 included discussions of accomplishments and initiatives and quotes from the presiding Chair. FY 2014 – 2018 press releases indicated the amounts of monetary relief secured prior to litigation (low of $296 million for 2014 to high of $525 million in 2015) and 2015 – 2018 listed the numbers of charges resolved (low of 90,558 in 2018 to high of 99,109 in 2017). FY 2014 – 2018 provided the numbers of lawsuits filed (low of 133 in 2014 and high of 199 for 2018), with 2016 – 2018 indicating the numbers of active lawsuits at the end of the period (168 in 2016 to 302 in 2018) and percentages of successful outcomes in resolved cases. FY 2016 – 2018 press releases also included the reduction of pending charges during the period (reduced to 73,508 in 2016 and to 49,607 in 2018) and numbers of telephone and in-person inquiries the agency responded to.

The obvious pattern is that the annual press release provided more and more information until the one issued January 24, 2020. Even though its title indicates it contains “Enforcement and Litigation Data” there is no Litigation data and very little from Enforcement – only the number of new charges filed broken out by bases alleged. This is not to say that the information is not available; it simply is no longer provided in the comprehensive and tidy package we have become used to. For instance, if you look to a FY 2019 Agency Financial Report press release of November 19, 2019, you can find the monetary amount recovered for charging parties pre-litigation ($346 million), the number of lawsuits filed (144) and percentages of successful outcomes in resolved cases. (My count of individual EEOC press releases for lawsuits filed during FY 2019 was 112.) Another press release dated February 10, 2020, seems to indicate a much higher dollar amount secured for victims and alleged victims prior to litigation ($486 million) and lists the year’s reduction in pending inventory (reduced to 43,580). My study was limited to information published in EEOC press releases; other public information may be available if you go through its website.

As we have seen in other areas, this presidential administration has not been as forthcoming with information of public interest as some others. It follows that the appointed leaders at the EEOC will follow the administration’s example. However, much if not all of the same information seems to be out there; you just have to look harder for it. I called the main number at the EEOC headquarters and asked about the dissemination of public information and received no response. A former colleague in its Legal division told me only that “all information required to be released to the public is available to it.” So, whether the newest press release of “Enforcement and Litigation Data” is a sign of things to come remains to be seen.

Another bit of interesting news that may provide some insight to the new leadership’s approach to the EEOC’s future comes from its recent congressional budget justification. The EEOC is seeking $362 million for its FY 2021 budget, a reduction of $27 million from its FY 2020 funding level. The National Labor Relations Board is likewise requesting a $27 million reduction from its 2020 funding level. Although previous proposals by the administration to drastically cut the Department of Labor’s budget have failed, it has proposed over a billion-dollar reduction for DOL next year.