The U.S. Equal Employment Opportunity Commission (EEOC) announced recently that they settled or resolved over 15,000 cases in Fiscal 2015 that brought in over half a billion dollars for alleged victims of discrimination.
EEOC also heralded the implementation of their new nation-wide e-mail charge notification process and Respondent electronic portal.
The EEOC Had a “Good” Year
Two thirds of the $525 million in payouts came from settlements of claims against private employers, state governments and municipalities. Another $65 million came from judgments in lawsuits and the remainder – a whopping $105 million – was obtained for federal employees and applicants, representing a curious form of asset reallocation by our federal government.
The 15,000 charges that resulted in payments to claimants represented only about 16% of all cases filed with EEOC – the remainder were all dismissed without further action. Of course, this does not mean that all of those dismissed cases were found to be without merit. Many of them resulted in findings against the employer but the EEOC was unable to successfully conciliate the matter. In most such cases, the EEOC chooses not to initiate litigation and instead just dismisses the case to let the claimant pursue the case in court privately.
The EEOC reported gains in the percentage of cases resolved through formal settlement discussions. Settlements were achieved in almost 80% of those cases where both parties agreed to participate in pre-investigation mediation. This high percentage almost certainly reflects that both sides are motivated, for various reasons, to settle the matter early. Interestingly, almost half (44%) the matters where the EEOC found against the employer following investigation were settled in the post-determination conciliation process. As noted above, the remaining cases presumably are dismissed and the claimants then must decide whether to hire an attorney and continue the fight on their own.
Retaliation claims represented the largest single category of charges filed with the agency, representing almost 45% of all cases filed. The next largest groupings were race (31%) and disability (30%). Before you wonder about EEOC’s math skills, remember that many of the charges that they receive identify multiple protected classifications as the claimed motivation for the discriminatory act. Thus, a single charge alleging racial bias, disability discrimination and illegal retaliation would be counted three different times in the EEOC’s statistics.
Harassment was most frequently cited as the adverse employment action, being mentioned in more than 30% of all cases filed. The prevalence of harassment charges in recent years has led to the formation of the EEOC’s Select Task Force on the Study of Harassment in the Workplace, which will examine the various forms of workplace harassment and identify and promote strategies to prevent it.
Charge Service By E-mail
One big change that all employers will see is the EEOC’s new Digital Charge System, which is now up and running nationwide. Instead of the hard copy delivered by US Mail, employers charged with discrimination will be notified by e-mail, with instructions for logging onto an online portal to view the charge, instructions for submitting a response and the invitation to participate in pre-investigation mediation. This portal is also the means by which EEOC communicates all further notices relating to the charge, and is the place for employers to designate their legal counsel so that important documents are copied to them as well.
The use of electronic notice in this fashion raises some questions about what might happen if the charge is caught in a spam filter or is addressed to the wrong person. EEOC has stated that if they do not hear from a charged employer within 10 days of the e-mail, they will attempt service again. Presumably, this will be done by regular mail and will not shorten or otherwise affect the employer’s time for responding to the charge. The agency also has said that they will also re-notify the employer if responses are not received to subsequent requests for information or documents.
It does not appear that use of the portal is mandatory. While it may make responding to an EEOC charge more efficient in the long run, government web sites and electronic communications systems tend to have a few bugs in the system so it may be a while before we actually see a more efficient charge-processing system. Claimants do not presently have access to the portal but plans are in place for this to happen at a later date. EEOC’s User Guide and Q&A offer helpful insight on this new process.
Bottom Line
To make sure that you do not encounter problems with this new EEOC electronic charge portal, remember that managers and supervisors may be the initial employer contact that EEOC has in their file. Therefore, be sure to tell them not to ignore e-mails from EEOC.
If e-mails (or subsequent mail reminders) from EEOC are received, have them forwarded to Human Resources, legal counsel or whomever else is responsible for answering EEOC charges. Then, be sure to check the portal regularly in case e-mail notices are still being held up.