The EEOC Litigation Review - 2023 - Report - Page 8
II.
Executive Summary
Government enforcement litigation is similar in many respects to class action litigation.
Lawsuits brought by the U.S. Equal Employment Opportunity Commission (EEOC)
typically present significant monetary exposure and involve numerous claimants. Most
often the lawsuits pose reputational risks to companies.
While plaintiffs in private party class actions must meet the requirements of Rule 23 to
secure class certification for their claims, EEOC-initiated litigation is different. For
example, systemic “pattern or practice” lawsuits brought by the EEOC follow a
framework established by the U.S. Supreme Court in International Brotherhood Of
Teamsters v. United States, 431 U.S. 324 (1977), class certification is not required.
Nonetheless, EEOC systemic lawsuits present analogous issues as compared to Rule
23 private party class actions.
The EEOC is one of the most aggressive federal agencies in terms of prosecuting
government enforcement litigation. This book focuses on EEOC litigation in 2022 and
the types of legal issues spawned by that litigation.
A.
The EEOC’s Strategic Plan
Every four years, the EEOC prepares a Strategic Plan that drives how it will improve its
internal operations to enforce federal anti-discrimination laws. The Commission’s Plan
for 2022-2026 sets forth specific goals along with performance metrics to measure its
progress toward those goals. The key elements of the draft Plan and why they are
important are critical data points for employers.
The 2022-2026 Strategic Plan specifies that, when investigating private sector
employers, the EEOC will focus its internal operations on four key areas. First, the
EEOC will ensure that by FY 2025, up to 90% of EEOC conciliations and litigation
resolutions will contain targeted, equitable relief. Further, between FY 2022 and 2026,
the Commission will endeavor to favorably resolve at least 90% of enforcement
lawsuits. On this point, the EEOC explains that, because its systemic litigation program
is resource intensive, this goal is important to enable the agency to use its resources in
a wise and efficient manner. Employers who have faced systemic lawsuits are wellaware of the amount of litigation resources they can consume, both for the companies
involved and the Commission. In addition, the EEOC is posed to expand its capacity to
prosecute systemic lawsuits. To that end, the EEOC will provide training to all field staff
on identifying and investigating systemic discrimination, and at least 90% of
investigators and trial attorneys will participate in systemic training each year. The
purpose is to expand the EEOC’s capacity to conduct systemic investigations so that it
may engage in a coordinated, strategic, and effective approach to systemic
enforcement. This signals that the Commission will continue to emphasize and
prioritize the use of pattern or practice lawsuits to enforce the statutes over which
Congress gave it authority. Finally, the EEOC will endeavor to increase its monitoring
of conciliation agreements, thereby leading to a more robust compliance program. The
Commission’s focus here is to implement streamlined and standardized procedures,
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© Duane Morris LLP 2023
The EEOC Litigation Review – 2023
