One of the best ways to predict this year’s trends in discrimination litigation is to examine last year’s charge statistics from the EEOC and the Iowa Civil Rights Commission. Any person who claims a violation of the state or federal anti-discrimination laws must first file an administrative charge with one or the other of these agencies. While each agency has its own procedures, generally they will issue a “right to sue” letter after conducting a preliminary investigation of the complaint. Last year’s administrative charges become this year’s lawsuits.
In fiscal year 2010, EEOC received a record 99,922 charges, a 7% increase over 2009. Despite the increase in charges, EEOC reports that its case inventory has decreased, which means more charges are actually being investigated, settled, or otherwise disposed.
Other evidence that EEOC is becoming more aggressive is its emphasis on what it calls “systemic enforcement.” As part of its systemic initiative, EEOC identifies common employer practices that impact a large number of persons in the workforce. In 2010, 465 systemic investigations were undertaken, and the agency filed 20 class action lawsuits involving systemic type claims, the most ever. One of EEOC’s focus in this area involves employer’s use of credit histories as part of the application process, which EEOC claims can have a racially discriminatory impact.
EEOC is also focusing of the area of disability discrimination. The final regulations interpreting the ADA Amendments Act are expected to be published shortly. As more disability charges continue to be filed and processed, employers can expect more disability discrimination claims to end up in court.
The silver lining in all these statistics comes from the Iowa Civil Rights Commission, which actually saw a decrease in the number of employment discrimination charges between 2009 and 2010. It must be noted, however, that the ICRC is itself becoming more aggressive in its investigation and settlement of discrimination charges. In 2009-10, the total value of mediated settlements with ICRC total $606,486, an increase of 62% over the prior year.
For additional information and analysis on these issues, I recommend the following:
From Overlawyered: The New (and very activist) Obama EEOC