In 2016, the EEOC filed 34% fewer lawsuits than it filed in 2015, and there were drastic declines in some areas, notably an 85.7% decline in age discrimination lawsuits.
This is not good news for victims of discrimination in employment. Without the gravity and resources of the EEOC behind them, many individual discrimination victims are puny “Davids” facing international corporate “Goliaths.”
It appears the steep litigation decline – from 174 lawsuits in 2015 to 114 in 2016 – is the result of the EEOC’s new emphasis on resolving individual complaints through voluntary mediation. However, mediation is a far better deal for employers than workers. For employers, mediation is a form of free dispute resolution that gets the EEOC off their back and eliminates the risk of massive damages and fees in a jury trial. For workers, mediation generally results in a modest financial settlement at best.
Many workers, especially those without counsel, do not fully understand their rights and the employer’s potential liability, or they cannot realistically fight for their rights because they have no money to wage a protracted court battle.
Mediation is a far better deal for discriminatory employers than it is for discrimination victims.
Here are the types and number of lawsuits filed by the EEOC in 2016 compared to 2015 and the percentage increase/decrease.
- Age Discrimination in Employment Act of 1967; Two lawsuits in 2016, compared to 14 in 2015 (a decrease of 85.7%).
- Title VII of the Civil Rights Act of 1964 (race, sex, religion, color and national origin): 46 lawsuits in 2016 compared to 83 in 2015 (a decrease of 44.5%).
- Americans with Disability Act: 36 lawsuits in 2016 compared to 53 in 2015 (a decrease of 32%).
- Equal Pay Act: Five lawsuits in 2016 compared to 7 in 2015 (a decrease of 28%).
- Genetic Information Non-Discrimination Act Two lawsuits in 2016 compared to one in 2015 (an increase of 50%).
Here are the number of lawsuits filed by the EEOC in the past decade.
- 2016; 114.
- 2015; 174 .
- 2014; 167.
- 2013; 148.
- 2012; 155.
- 2011; 300.
- 2010; 271.
- 2009; 313.
- 2008; 325.
- 2007; 362.
Underlying the EEOC’s strategy may be the fact that some federal courts have been openly hostile to the EEOC and its mission.
In a major blow, the U.S. Supreme Court unanimously ruled last year that federal courts have the authority to review whether the EEOC has satisfied its duty to attempt pre-suit conciliation. This is a process by which the EEOC allows a company to come into voluntary compliance with the law. In Mach Mining v. EEOC, the Court vacated a 2013 decision by an appeals court panel based in Chicago that concluded allowing employers to dispute the adequacy of the EEOC’s conciliation efforts would create an unwarranted impediment to justice.
The Mach Mining case began when a female job applicant alleged that Mach Mining refused to hire females into mining and related non-office positions because of their sex. After finding that reasonable cause existed to believe that Mach Mining discriminated against females in hiring, the EEOC sent a letter inviting the charging party and Mach Mining to begin informal conciliation. A year passed, and the EEOC sent a second letter to Mach Mining stating the conciliation effort had failed. The EEOC brought a class action suit against Mach Mining, which responded by claiming that the EEOC had failed to conciliate in good faith before bringing the action. The Supreme Court agreed with Mach Mining, ruling the EEOC “must try to engage the employer in some form of discussion … so as to give the employer an opportunity to remedy the allegedly discriminatory practice.