Class Action Defense

By Alex W. Karasik, Gerald L. Maatman, Jr. and Jennifer A. Riley

Duane Morris Takeaways: On March 13, 2023, the EEOC published its fiscal year 2022 Annual Performance Report (FY 2022 APR), highlighting the Commission’s recovery of $513.7 million in monetary relief for more than 38,000 victims of employment discrimination, including nearly $40 million as a direct result of litigation resolutions.

This annual publication from the EEOC is noteworthy for employers in terms of recognizing the EEOC’s reach, understanding financial exposure for workplace discrimination claims, and identifying areas where the EEOC may focus its litigation efforts in the coming year. It is a must read for corporate counsel, HR professional, and business leaders.

FY 2022 Statistical Highlights

The EEOC’s recovery of $513.7 million in monetary relief represents a solid increase from the $485 million in monetary relief that it secured in FY 2021. More noteworthy is that the Commission secured monetary relief on behalf of 38,000 alleged victims in FY 2022, which is more than double the amount from FY 2021, when monetary relief was recovered on behalf of 15,000 alleged victims. This suggests that more complainants are being made whole through the EEOC’s litigation and alternative dispute resolution efforts.

Approximately $342 million was recovered for more than 33,298 victims of employment discrimination in the private sector and state and local government workplaces through mediation, conciliation, and settlements. Furthermore, $39.7 million was recovered for 1,461 individuals as a direct result of litigation resolutions. Notably, the EEOC indicated it successfully resolved 44% of its conciliations, and among those successes, 43.1% involved one or more Strategic Enforcement Plan priority areas. The EEOC also conducted 6,578 successful mediations, resulting in $170.4 million in benefits for charging parties.

In terms of charge intake, the EEOC reported 73,485 new discrimination charges, an increase of nearly 20% compared to fiscal year 2021. This statistic suggest workers are increasingly more apt to turn to the Commission to resolve workplace discrimination disputes.

Finally, the EEOC filed 91 lawsuits in FY 2022 on behalf of 53 individuals, including 25 non-systemic suits with multiple victims, and 13 systemic suits involving multiple victims or discriminatory policies. Approximately half of the EEOC’s newly filed lawsuits raised one or more the EEOC’s Strategic Enforcement Plan priorities.

Strategic Priorities

Addressing systemic discrimination has long been a top priority for the EEOC. In FY 2022, the EEOC resolved over 300 systemic investigations on the merits, obtaining more than $29.7 million in monetary benefits. The EEOC also resolved 10 systemic lawsuits, obtaining over $28 million in relief for nearly 1,300 individuals and significant equitable relief. To ensure the systemic lawsuit cupboard was not left bare, the EEOC filed 13 new systemic lawsuits.

Advancing racial justice was another strategic priority for the EEOC in FY 2022. The FY 2022 APR notes that the EEOC resolved 18 lawsuits alleging race or national origin discrimination, for approximately $4.6 million in relief, benefiting 298 individuals.  In addition, nine of the new 13 systemic lawsuits include claims of race or national origin discrimination. The EEOC also conducted 468 race and color outreach events, which reached 52,675 attendees. This includes 143 racial justice events reaching 9,064 attendees.

Finally, in recent years the EEOC has indicated that the use of artificial intelligence (“AI”) and algorithmic fairness in employment decisions is a strategic priority. In addition to providing AI training to systemic enforcement teams in the EEOC’s field offices, the EEOC hosted 24 AI and algorithmic fairness outreach events for 1,192 attendees. The EEOC’s efforts culminated with one lawsuit filing in this area. Finally, the EEOC prepared two ADA-related guidance publications relative to the use of artificial intelligence.

Other Notable Developments

Beyond touting its monetary successes, the FY 2022 APR also highlights the EEOC’s efforts in the community. The EEOC conducted 3,302 outreach and training events, providing more than 225,906 individuals nationwide with information about employment discrimination and their rights and responsibilities in the workplace. Among these outreach programs were 399 events for small businesses, which were attend by approximately 18,878 individuals. Finally, 369 outreach events concerned the intersection of COVID-19 and employment discrimination laws. These COVID-19 programs had 26,041 attendees.

The EEOC also expanded its digital footprint, as the EEOC’s website had 10.8 million users. This marks a 3% increase over fiscal year 2021. There were 16 million user sessions, a 4.4% increase over fiscal year 2021. The EEOC had over 29 million page views, a 4.4% increase over fiscal year 2021, and there was a 3% increase in mobile traffic on the website. This data suggests that potential charging parties and other various constituents are more actively engaging with the Commission through its online platforms.

Takeaways For Employers

While the 2020 global pandemic may have slowed down the workforce developments and relatedly the EEOC for a few years, the FY 2022 APR suggests the EEOC is back to investigating and litigating employment discrimination claims in full gear. Employers should be mindful of these data points in terms of implementing and enforcing policies against employment discrimination.

We anticipate that the EEOC will continue to aggressively pursue its strategic priority areas, such as systemic discrimination, racial justice, artificial intelligence, and its underlying goal of providing access to justice for underrepresented groups of workers. We will continue to track EEOC litigation developments throughout the year.