By Christopher DeGroff, Andrew Scroggins, Sarah Bauman, and James Nasiri
Seyfarth Synopsis: On March 13, 2022, the EEOC released its fiscal year (“FY”) 2022 performance report (“APR”). The APR is the EEOC’s own “report card.” It analyzes the Commission’s performance results based on its Strategic Plan for FYs 2018-2022. A close read of the APR reveals valuable insights into the EEOC’s strategic priorities and offers a unique lens into what employers can expect from the Commission moving forward.
EEOC Enforcement Highlights: Filings Down While Amounts Recovered Increase
The EEOC’s APR touted another successful year on the enforcement front, with a focus on sheer volume of cash recovered from employers during FY 2022. During the last FY, the Commission secured over $513.7 million for victims of discrimination. This represents a whopping $30 million increase compared to FY 2021, in which the EEOC recovered approximately $485 million for workers. Digging deeper, however, reveals that the private sector and state and local municipalities fared better in FY 2022, as the Commission actually secured less monetary relief in total and per capita as compared to the prior year: $342 million for 33,298 employees in FY 2022 v. $350.7 million for 11,067 employees in FY 2021. The EEOC made up for this delta, however, by recovering $132 million for federal employees and applicants in FY 2022, which is a notable increase over the $100 million it secured for the same sector in FY 2021.
As we previously forecast months ago, however, the EEOC was less active during FY 2022 as compared to the prior FY on three important metrics: new litigation cases opened, existing litigation cases closed, and mediation resolutions. In FY 2022, the EEOC filed 91 lawsuits, including 53 cases on behalf of individuals and 13 systemic lawsuits. That’s down from FY 2021, when the Commission filed 116 lawsuits, 74 of which were on behalf of individuals and 13 of which were systemic matters. The EEOC’s case closure activity was also relatively sluggish in FY 2022. The EEOC resolved 96 lawsuits in FY 2022, which is down from resolving 138 lawsuits in FY 2021. Moreover, the Commission was slightly less successful in its mediation efforts in FY 2022, as it conducted 6,578 successful mediations resulting in $170.4 million in FY 2022 (compared to 6,644 mediations for $176.6 million in FY 2021).
Aside from its litigation statistics, the EEOC’s APR also chronicles recent charge data. The EEOC saw a dramatic increase in the amount of discrimination charges filed in FY 2022, as the EEOC clocked 73,485 charges during its most recent fiscal year, compared to receiving just 61,331 charges in FY 2021. A 12,000-charge increase is certainly eye-catching. Some commentary has speculated that this charge rise was tied to the ebb of Covid-19. However, sources have also indicated that in the weeks before FY 2022, EEOC leadership pulled investigatory resources away from processing pending charges, and redirected them to “mining” digital inquiries by potential charging parties to further assess interest in formally filing a new charge. This additional attention to developing new charges (rather than investigating pending claims) appears to have made a meaningful impact on the FY 2022 figures. This same reallocation of resources also would explain why the EEOC collected less monetary relief at the charge stage, which the APR discloses fell to $342 million in FY 2022, versus almost $351 million in FY 2021.
Notable Priorities Emphasized In The FY 2022 APR
While the APR generally follows the format of the Commission’s Strategic Plan, a detailed analysis of the Report can still shed light on what employers can expect from the EEOC in 2023-24. One emerging issue on the EEOC’s radar is the use of artificial intelligence (“AI”) in the workplace. The APR trumpets that it has trained all of its systemic enforcement teams on AI, issued a guide on the intersection between AI and the Americans with Disabilities Act (“ADA”), and hosted 24 “AI and algorithmic fairness outreach events” in FY 2022. The EEOC also highlighted a lawsuit that it filed related to an employer’s use of AI in its hiring process, captioned EEOC v. iTutorGroup, Inc., No. 1:22-cv-2565 (E.D.N.Y). All signs point toward increased scrutiny of employers’ use of AI in the years to come.
The FY 2022 APR also underscored how the EEOC – along with nearly every employer throughout the country – is still dealing with the effects of the COVID-19 pandemic. To that end, the Report noted that, during FY 2022, the EEOC updated its guide for employees on COVID-19 and workplace discrimination laws a total of seven times, in addition to holding 369 outreach events concerning the pandemic. The EEOC also received over 10,000 charges of discrimination related to COVID-19 and filed two ADA lawsuits on behalf of immunocompromised employees in FY 2022. While COVID’s spread seems to have slowed, the past challenges it presented to employers will continue to work their way through the system.
The APR also highlighted several areas of enforcement that are consistently high on the EEOC’s priority list. Specifically, the report emphasized the EEOC’s goal of advancing racial justice in multiple contexts, including by highlighting the 20 lawsuits and 18 settlements involving race or national origin discrimination allegations in FY 2022. Retaliation is also a routine focus of the Commission and this past FY was no different. During FY 2022, the EEOC filed 32 retaliation lawsuits, resolved 26 retaliation cases, and conducted 384 retaliation outreach events (which was over 240 more events that the Commission held for any other outreach area). Furthermore, while pursuing systemic litigation is always a priority for the EEOC, its systemic-related performance measure was the only performance metric it failed to meet in FY 2022. We can reasonably expect the EEOC will aggressively seek to rectify that miss in FY 2023.
Finally, the APR concluded by discussing three “major management challenges” facing the EEOC, as identified in the Office of Inspector General’s FY 2022 Management Challenges Report. This past year, the Commission’s major management challenges were reentry, mission-critical data system modernization, and digital records management. The reentry challenge is one experienced by employers through the U.S., as the EEOC worked to bring its staff back into its physical offices in FY 2022. As to the EEOC’s data system modernization, these efforts focused on internal technological systems as well as external systems used by employers, such as the Respondent Portal. According to the EEOC, it is now more well-positioned than ever to achieve a complete overhaul of its digital systems. Lastly, the Commission’s efforts in terms of digital records management are largely focused on improving its efficiency in processing FOIA requests. The APR noted that – thanks to its efforts to transition to digital records – the EEOC had a historically low number of only 86 overdue FOIA requests in FY 2022.
Implications for Employers
Employers can discern several practical takeaways from the EEOC’s FY 2022 APR. Specifically, given the Report’s emphasis on the use of AI and other automated technology in the workplace, employers can expect the EEOC to pay close attention to any use of such technology in the hiring process or otherwise. Addressing race discrimination and acts of retaliation also continue to be top litigation priorities at the Commission. Employers should ensure that their employees are receiving adequate training on both of these timely issues.
Finally, while the EEOC’s FY 2022 enforcement activity remained relatively low, employers should not expect this to be the “new norm” at the Commission. Indeed, despite a Democratic President who appointed a Democratic Chair of the EEOC, the Commission still does not have a Democratic majority until the Senate confirms the appointment of Kalpana Kotagal. Once that final piece in the political puzzle falls into place, we can expect to see an accelerating, aggressive pursuit of enforcement efforts across the EEOC’s platform, particularly in the areas of systemic cases. As always, if our reader wishes to take a deeper dive into any of these topics, we invite you to download our eBook, EEOC-Initiated Litigation, 2023 Edition.