Steptoe Provides Highlights and Analysis of Recent EEOC Litigation

(November 16, 2009, Washington, DC) – Steptoe & Johnson LLP, a leading international law firm, today released an analysis of the United States Equal Employment Opportunity Commission’s (EEOC) recent litigation enforcement program. The report was issued via Steptoe’s publishing subsidiary InternatLaw. The analysis is derived from a study conducted by Ronald S. Cooper, a partner at Steptoe’s Washington office and former General Counsel at EEOC from August 2006 to February 2009. Mr. Cooper reviewed EEOC’s case filings and resolutions for fiscal years 2007, 2008, and 2009 (the period during the implementation of the Commission’s Systemic Initiative which was adopted in 2006). The in-depth study is based on examination of information collected from public sources and monitors EEOC’s case filings, outcomes, and trends. The complete study will be available to Steptoe’s clients and will be regularly updated. Using a secure extranet, firm clients will be able to sort filings and resolutions for each district office, determine how the mix of claims being litigated by a particular district compares with the agency as a whole, and assess the average cost of settlement for particular categories of claims on an agency-wide or district base.

“Our review of data for 2009 shows that total merits filings continued the decline previously reported by the agency for fiscal years 2007 and 2008,” said Mr. Cooper. According to Mr. Cooper, this data shows that the total number of merits cases filed by the EEOC in federal court declined from 371 cases in FY2006 to 276 cases in FY2009. “I believe this decline is attributable to the flat funding provided to the Commission during this period that led to a hiring freeze. As a result, both the Office of General Counsel and the Office of Field Programs — the unit responsible for the investigation and conciliation of charges that must precede litigation — were understaffed,” Mr. Cooper added.       

The analysis also shows that the frequency of filing claims in particular categories changed over the period. Significantly, disability claims increased from 8.93% of claims filed in FY2008 to 21.37% of those filed in FY2009. “This increase coincided with the January 1, 2009 effective date of the Americans with Disabilities Act (ADA) amendments that simplified issues of coverage, as well as with revisions to EEOC procedures in November 2008 that removed the requirement for all ADA cases to be approved by a Commission vote,” stated Mr. Cooper. 

“In addition, 2009 saw the filing of 12 cases by seven of the EEOC’s 15 district offices that I would characterize as systemic. Because the agency does not label cases as systemic, this list represents my personal view. This number would represent a decline in the number of systemic filings from 2008. These cases include six age discrimination cases including a challenge to an early retirement plan because it banned reemployment; three disability cases, including a challenge to a leave policy with a 12-month cap; and three cases under Title VII, including a claim that credit checks and criminal justice checks for applicants resulted in an unlawful disparate impact against African Americans, Hispanics, and males,” said Mr. Cooper.

For more information on the survey, please contact Mr. Cooper at Steptoe & Johnson LLP at (202) 429-8056 or rcooper@steptoe.com.

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