NEW YORK — Companies should expect the U.S. Equal Employment Opportunity Commission's enforcement of federal anti-discrimination regulations to become increasingly “aggressive” in the coming year, one of the agency's commissioners said.
The number of workplace discrimination lawsuits filed by the EEOC in 2013 against private companies increased slightly to 131 compared with 122 in the prior year, according to the EEOC. Similarly, the total amount of monetary relief the agency collected for victims of workplace discrimination increased to $372.1 million last year, compared with $365.4 million in 2012.
During a keynote address at the American Conference Institute's 20th National Conference on Employment Practices Liability Insurance in New York, EEOC Commissioner Constance Barker said the anticipated rise in lawsuits — particularly cases targeting systemic discrimination —filed in the agency's name is due in part to what she said is an overly broad interpretation of a 1996 directive to delegate litigation authority to its general counsel.
“Since we've got so much authority delegated to the agency's general counsel, 2013 really became the year of litigation, and I think 2014 will continue that trend,” said Ms. Barker, who was appointed to the commission by former President George W. Bush in 2008. “I think private companies ought to expect to see more aggressive use of the litigation process, more aggressive pursuit of systemic discrimination cases and more cases bypassing the commission's review and vote.”
Conciliation ruling could expand exposures
In addition to offering her prediction for overall litigation trends in the coming year, Ms. Barker outlined several federal rulings last year that could portend an expansion of employers' exposure to employment practices liability under the Americans with Disabilities Act, Title VII of the Civil Rights Act and other federal workplace anti-discrimination laws.
In particular, Ms. Barker said a December 2013 ruling by the 7th U.S. Circuit Court of Appeals could drastically limit employers' ability to head off lawsuits brought by the EEOC.
In its unanimous decision, the appeals court overturned a lower court's previous dismissal of the EEOC's lawsuit against Mach Mining L.L.C., declaring that employers cannot challenge the adequacy of the EEOC's required conciliation efforts with potential defendants, nor can courts review those efforts in determining procedural appropriateness in legal actions brought by the EEOC.
Ms. Barker said that because the 7th Circuit's decision conflicts with prior rulings in as many as seven other appeals court circuits, the issue is likely to come before the U.S. Supreme Court.
“What I hope is that the Supreme Court will take up this case or one similar to it — and believe me, there will be a lot of them — and ultimately tell us that the conciliation issue is reviewable in court,” Ms. Barker said. “I hope they come back and tell us that we have an obligation to make a good faith effort to offer conciliation prior to litigation, which Congress has made it clear that we do.”