The U.S. Equal Employment Opportunity Commission (EEOC) attained new levels of efficiency during fiscal year 2017, having reduced its charges workload by 16.2 percent (to 61,621), the greatest inventory reduction in a decade. Those efficiency levels should please legislators who have been complaining about the backlogged charges. Lawmakers went so far as to include a rider on an appropriations bill last year that would have prevented the EEOC from collecting pay data from certain businesses and that would have induced the commission to diminish its backlogged cases. Republican legislators have criticized the commission for prioritizing “systemic discrimination cases” over backlogged inventory. Though the rider was stricken from the bill, Victoria A. Lipnic, the acting chair of the EEOC and a Republican, vowed to reduce the inventory.
A press release from the EEOC highlighted some key aspects of the commission’s enforcement and litigation data. According to the release, after receiving over 84,000 workplace discrimination charges, the EEOC was able to secure, via settlements and litigation, more than $398 million for those harmed by discriminatory behavior. The scope of the charges covered private businesses, and local and state government employers. As mentioned, the inventory was reduced by 16.2 percent, after the commission completed 99,109 charges. To explain the low inventory, the EEOC suggested in its press release that it had updated its digital systems, prioritized cases with merits and moved through investigations with greater efficiency.
Bases for Allegations
The agency received a number of different types of charges, but the most common basis was retaliation, accounting for nearly half the allegations. Race and disability followed close behind, making up 33.9 percent and 31.9 percent of the claims, respectively. Then, following disability, charges were filed on the basis of sex, age, national origin, religion, color, equal pay and genetic information. Moreover, 6,696 sexual harassment charges were sent to the commission, which secured $46.3 million for those harmed by sexual harassment.
The commission filed 184 merits lawsuits. Those included 30 suits with multiple victims or discriminatory policies and 30 suits involving systemic discrimination. The remaining 124 cases pertain to individual complaints. In the end, 90.8 percent of the actions resulted in positive outcomes, according to the EEOC’s press release.
Acting Chair’s Statement
In a statement, Lipnic said the following: “Over the past year, the EEOC has remained steadfast in its commitment to its core values and mission: to vigorously enforce our nation’s civil rights laws.” Lipnic continued, “The results for the last fiscal year demonstrate exactly that.”
The data appears to reflect increased efficiency and high sums of money for victims. But it isn’t clear that efficiency is necessarily a positive attribute, in and of itself. It’s also not clear that the data reflects positive results for victims. In absolute terms, $46.3 million sounds like a fairly high number, but when that number is relativized, we might notice another story hidden in the data.
A report by Fast Company found that in 2016 employees fared worse than their employer counterparts. The EEOC received 97,443 charges and distributed 81,129 notices to sue – that’s 83.3 percent of all charges – but only a tenth of those notices turned into lawsuits. And when plaintiffs go to court, it seems they don’t have much of a chance of winning. According to analysis provided by Lex Machina, between 2009 and 2017, 54,810 suits were filed. Of those legal complaints, only 584 (or one percent) resulted in courtroom victories for plaintiffs. Employers, by contrast, won 14 percent of the cases. Another seven percent of cases were dismissed for procedural reasons.
As for the remaining 78 percent, they probably resulted in out-of-court settlements, but there’s little to no data on the outcomes of those settlements. Brian Howard, of Lex Machina, had this to say: “We don’t know how much money, what other terms the employee had to agree to, how much they originally sought, how often personal circumstances force the settlement, whether they got any feeling of vindication, etc.” In short, we know very little about how most victims fare in workplace discrimination cases.
At the very least, Lex Machina’s research might be cause for skepticism when it comes to the EEOC’s recent litigation and enforcement data.
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