The EEOC Litigation Review - 2023 - Report - Page 7
I.
Overview Of EEOC-Initiated Litigation In 2022
Over the past year, the Biden Administration continued to roll out changes on several
fronts as it aimed to expand the rights, remedies, and procedural avenues available to
workers. During 2022, such efforts fueled litigation.
During 2022, however, the EEOC continued to operate with a Trump-appointed majority
of commissioners. Although President Biden quickly named two Democrats for the fivemember Commission, Charlotte E. Burrows and Jocelyn Samuels, as Chair and Vice
Chair, respectively, the commission retained a Republican-appointed majority until
former chair Janet Dhillon’s term expired in July 2022. Although such expiration opened
the door to a Democratic-appointed majority, the Senate has not yet confirmed a
replacement.
The EEOC’s year-over-year activity remained fairly steady. During fiscal year 2022, the
EEOC filed 94 lawsuits. This number marked a mild decrease from the filings during
fiscal year 2021, when the EEOC filed 114 lawsuits, but it exceeded the number filed in
fiscal year 2020 when the COVID-19 pandemic pushed case filings down to just 33.
Notably, the EEOC’s California district offices in San Francisco and Los Angeles
combined for only 4 filings this past year, below the combined 13 cases they filed in
fiscal year 2021.
According to the EEOC, it filed 13 systemic lawsuits this past year, the same number it
filed during fiscal year 2021. As to its current docket, the EEOC reported that it has 29
pending systemic cases, which accounted for 16% of the EEOC’s docket in fiscal year
2022.
In contrast, by the end of FY 2018, the EEOC had 71 systemic cases on its active
docket, two of which included over 1,000 victims, and systemic cases accounted for
23.5% of its active lawsuits in that year, likely reflecting a stalling in the ability of its
Democratic-appointment members to push this aspect of the EEOC’s agenda.
Comparing its monetary recovery to previous years, the EEOC recovered $535.5 million
in all types of cases in FY 2020, $486 million in FY 2019, and $505 million in FY 2018.
Whereas companies continued to see pro-business rules promulgated by the Trump
Administration withdrawn and overwritten in 2022, courts continued to impose hurdles to
agency rulemaking, the impact of which will continue to be seen in 2023.
In sum, enforcement activity remained steady as political appointments remain pending.
Employers are apt to see increased activity in 2023 as the EEOC gains its full
component of Biden appointees and can exercise its majority power to advance its
agenda.
7
© Duane Morris LLP 2023
The EEOC Litigation Review – 2023
