EEOC-Initiated Litigation: Case Law Developments In 2011 And Trends To Watch For In 2012

 

Seyfarth’s Complex Discrimination Litigation Practice Group has prepared a special report entitled EEOC-Initiated Litigation: Case Law Developments In 2011 And Trends To Watch For In 2012. The Report draws on the 79 major decisions of the past year to analyze key trends in EEOC litigation and forecast what employers can expect in 2012. The Report guides companies through case decisions involving EEOC-initiated litigation and enables corporate counsel to make sound and informed decisions while minimizing risks.

The EEOC promised to file bigger, higher-profile cases in 2011 and delivered on the promise, with a second straight year of a record number of class-like federal court filings. Indeed, for the past five years, the EEOC’s public strategy has been to further its agenda through prosecution of large-scale cases that will attract media attention, with the hope that this brand of class litigation will channel employers’ behavior. To that end, 2011 saw a mixture of judicial rulings in EEOC cases that range from refreshingly employer-friendly to those that sent chills through the employment community.

Looking ahead to what employers can expect in 2012, it is virtually certain that employers will see even more aggressive systemic investigations (and related subpoena enforcement actions) in the coming year. With recent wins on the scope of the EEOC’s investigative power, we expect the EEOC to undertake broader and deeper investigations that will help avoid repeat performances of the sanctions the Commission absorbed in 2011 in cases where federal judges called the EEOC to task for not doing its homework. Furthermore, despite the EEOC’s questionable position that it serves as a "neutral" in the investigation stage, its 2012-2016 public strategic plan states that it will pursue "an integrated, holistic approach to enforcement from beginning to end, without separating the investigation and conciliation stage of the EEOC’s work from its litigation stage."

We also foresee the EEOC joining forces with other parties to achieve its objectives. As one example, in November 2011, the EEOC and the OFCCP promised to coordinate their enforcement efforts and share discrimination claim information. We also observed an unprecedented amount of coordination between the EEOC and the private plaintiffs’ class action bar in 2011, and only expect that trend to continue into year ahead.

Finally, employers also can expect disability discrimination to figure significantly in the EEOC’s 2012 agenda. The Commission has stated publicly that enforcing ADA claims is a key goal, and the number of ADA cases in 2011 demonstrates that goal is well on its way to becoming a reality.

EEOC-Initiated Litigation: Case Law Developments In 2011 And Trends To Watch For In 2012 is authored by Seyfarth Shaw partners Gerald L. Maatman, Jr. and Christopher DeGroff, co-chairs of the firm’s complex discrimination practice group. Both led a number winning defense strategies in 2011 in government enforcement litigation, including Maatman’s historic turn in a lawsuit brought by the EEOC in which he won the right to depose EEOC officials about the agency’s own personnel practices.

The Report can be downloaded here.

Click here to download our press release regarding the report.