Update: Equal Employment Opportunity Commission Issues Fiscal Year 2011 Statistics and 2012 Priorities

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently released its final statistics for fiscal year (“FY”) ending September 30, 2011, as well as its Proposed Strategic Plan for 2012. The aptly titled press release, Private Sector Bias Charges Hit All-Time High, reveals that the EEOC received a whopping 99,947 private sector charges filed with the agency in fiscal year 2011, indicating a record-breaking year for the EEOC. Once again, retaliation charges were the most prevalent of all types of charges, with almost 40% of the 99,947 private sector charges alleging retaliation under all laws enforced by the EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). The EEOC also broke records with respect to monetary awards, having obtained a total of $455.6 million in relief for discrimination claimants through its administrative program and litigation. This continues the EEOC’s three-year upward trend in monetary relief.

The remaining EEOC charges filed during fiscal year 2011 are broken down as follows:

• 4,151 religious discrimination charges;

• 11,833 national origin charges;

• 23,465 age discrimination charges;

• 25,742 charges under the ADA;

• 28,534 sex discrimination charges

• 35,395 race discrimination charges; and

• 245 charges under GINA.

The EEOC’s Strategic Plan for 2012-2016, announced January 18, 2012, reveals the agency’s intent to focus on systemic discrimination. Unlike individual discrimination cases, which typically involve just one employee, systemic discrimination involves “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” In fiscal year 2011, 23 systemic discrimination cases were filed, and nearly 600 investigations were ongoing.

Over the last few months, the EEOC has held public meetings about hiring practices believed to create discriminatory obstacles to hiring, such as screening candidates based on credit history, arrest and conviction records, or unemployment status. Future public meetings will focus on pregnancy and caregiver discrimination.

The EEOC also revealed budget cuts for FY 2012, which may impact its enforcement efforts. Nevertheless, the EEOC seems determined to continue its efforts to challenge bias in hiring and pay practices. Other priorities described by the EEOC for FY 2012 include:

• Implementation of a final rule under the ADEA

• Updated guidance on leave as a reasonable accommodation under the ADA

• Emphasis on compensation disparity issues

• Focus on ADA Amendments Act Cases

In light of the rise in retaliation, race, national origin, religion, and disability charges, and in light of the fact that both major political parties in this election year have emphasized job creation and the reduction of high employment rates, employers should take steps to ensure continued compliance with the ever-changing employment discrimination laws. We advise employers to review their policies and practices to ensure that there is no disproportionate impact on any protected group and consider implementing and/or revising comprehensive anti-harassment and anti-discrimination policies and training that encompasses all forms of unlawful harassment, discrimination, and retaliation.

Leech Tishman’s Employment Practice Group has extensive experience working with the EEOC, the Department of Labor, and other federal, state and local employment agencies. We have assisted clients through a variety of EEOC investigations and are available to assist you in preparing anti-harassment and anti-discrimination policies that can help you avoid liability to the EEOC or your employees.

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