Duane Morris Class Action Review - 2023 - Report - Page 146
#5 - Preserving Access to the Legal System - The Commission’s focus within this
priority is on practices that discourage or prohibit individuals from exercising their rights,
including overly broad waivers, releases, and mandatory arbitration provisions, failure to
maintain applicant and employee data, and retaliatory practices that dissuade
employees from exercising their rights. More often than not, this priority manifests itself
with lawsuits grounded on retaliation theories.
#6 - Preventing Systemic Harassment - This priority is directed at sexual harassment,
but also harassment based on race, disability, age, national origin, and religion. In its
enforcement litigation, this strategic priority typically involves systemic, pattern or
practice cases.
Some – but certainly not all – of the EEOC’s lawsuits initiated over the past year fall into
one or more of these six categories. Further, while the Commission’s six major
enforcement priorities have remained consistent across its iterations of the SEP, the
EEOC has changed how it interprets those priorities.
In effect, this has lead the Commission to shift how it approaches litigation and the
issues it chooses to enforce in the courts. Additionally, the 2017-2021 SEP recognized
the importance of “systemic” cases to its overall mission. Systemic cases are those with
a strategic impact, insofar as they affect how the law influences a particular community,
entity, or industry.
The term of the last SEP expired at the end of Fiscal Year 2021, but it remains in effect
until modified or withdrawn. At the same time, the EEOC has announced its intention to
update and release a new SEP sometime in FY 2023.
D.
Strategic Priorities In Litigation And Trends In Case Filings In FY 2022
The EEOC’s case filings totaled 94 lawsuits over the past fiscal year. It marked an
increase over FY 2020 when the COVID-19 pandemic pushed case filings down to just
33. However, it dipped below the figures for fiscal year 2021, when the EEOC filed 114
lawsuits.
The most noticeable trend of 2022 is the filing dip in some key regions compared to past
years. The New York district office had 6 filings in FY 2021 and only 2 in FY 2022. The
California district offices in San Francisco and Los Angeles, which combined for 13 new
filings last year, declined in FY 2022, falling to only 4 total filings, including San
Francisco’s fall from 6 to 1. The Indianapolis district office was in the middle of the pack
with 4 filings this year. Philadelphia led the way in FY 2022 with a total of 7 filings.
Miami and Phoenix also had 4 each, Memphis had 3, and Dallas, Houston, and St.
Louis all had 2 total filings.
An analysis of the types of lawsuits the EEOC files, in terms of the statutes and theories
of discrimination alleged, shows that Title VII cases made up the majority of cases filed,
making up 64% of all filings. ADA cases amade up a significant percentage of the
EEOC’s filings, totaling 24% of the docket this past year. Conversely, age discrimination
cases filed in FY 2022 made up only 5% of the Commission’s docket.
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Duane Morris Class Action Review – 2023
