EEOC Bias Suits Drop in 2024 Despite Move to Democratic Majority

The number of discrimination cases filed by the EEOC this year dipped after an uptick last year, even as a new Democratic majority and general counsel broke a partisan deadlock that had limited aspects of the agency’s work.

The US Equal Employment Opportunity Commission filed roughly 96 cases with discrimination complaints in the fiscal year that ended Sept. 30, about a 35% decline from the 144 cases filed the year before, according to an annual analysis released by Seyfarth Shaw LLP.

Fiscal year 2024’s case filings dropped closer to the numbers seen in 2020, 2021, and 2022, during a slower filing period throughout the Covid-19 pandemic. But the number of cases filed this year doesn’t give a full picture of the agency’s litigation program.

The statistic doesn’t include how many initial charges resolved through private conciliation and how many suits were larger systemic cases that require more resources, former agency officials said.

“I wasn’t alarmed by the numbers,” said David Lopez, a former general counsel of the EEOC during the Obama administration.

Seyfarth’s analysis was conducted by reviewing agency announcements and docket filings before the end of the fiscal year. The law firm focused on discrimination claims instead of subpoena enforcement actions or suits forcing employers to submit outstanding EEO-1 reports.

The EEOC declined to comment on Seyfarth’s analysis. A spokesperson said the agency will soon issue its own annual summary of litigation filings.

Furlough Threat Questions

The beginning of the 2024 fiscal year marked the end of extended partisan deadlock on the commission as the confirmation of Kalpana Kotagal gave the five-member panel a Democrat majority for the first time since President Joe Biden took office. The EEOC had also been missing a permanent general counsel from March 2021 until Democrat Karla Gilbride was finally confirmed in the role in October 2023.

The dip in filed cases despite these changes may indicate the agency faced budget and resource constraints that hampered its litigating power, Seyfarth Shaw attorneys Andrew Scroggins and Christopher DeGroff said.

The EEOC warned in July it would need to furlough workers for one day due to a budget shortfall that Chair Charlotte Burrows said in a memo was caused by flat funding and a “well-deserved but unfunded” 5.2% raise for federal employees that Biden signed into law in December 2023. Ultimately, the agency rescinded the plan in August after gathering savings.

“It does make you question whether they didn’t have the resources to bring additional litigation or whether just the discussions around furloughs cooled the enthusiasm of EEOC employees toward pushing them to have more cases filed before the end of the year,” Scroggins said.

The EEOC’s budget remained stagnant at $455 million for fiscal years 2023 and 2024.

“This should be a kind of a call for more resources for the agency, and more resources on the ground,” said Lopez, who is now a professor at Rutgers Law School.

Budget may not be a “main driver” of the number of cases filed, but it’s “certainly a contributor,” said former Republican EEOC commissioner and current partner at Resolution Economics Victoria Lipnic.

Funding levels and paying the annual salary increases for full-time employees are a “very real issue.”

“It’s really a combination of many factors,” she said, which also include the case pipeline and what the EEOC thinks are good cases.

Last fiscal year’s heavier caseload increase also may have cut into the agency’s litigation capability for 2024, DeGroff said.

The EEOC is likely “struggling with dozens of lawsuits they filed in last year’s more robust filing spree and have limited resources to handle that,” he said, noting some cases the agency brings can take almost a decade to fully resolve.

Although the agency filed fewer cases, it appeared to pursue a number of systemic or class-like claims which require more litigation resources, employment attorneys said.

On the last day of the year alone at least 10 cases filed include class-like claims, Degroff said.

The EEOC’s latest strategic enforcement plan, for 2024 to 2028, outlined a push for the agency to advance systemic cases and investigations to strengthen enforcement.

The commission also filed 15 suits in May to force companies to submit EEO-1 reports, mandatory annual disclosures about the racial and gender makeup of their workforce. It was an unusual litigation move for the agency.

The EEOC is “trying to send a message to the employer community” to submit them on an annual basis or they’re “coming after you,” Littler Mendelson shareholder Barry Hartstein said.

PWFA ‘Hot Out of the Gate’

The number of filings aside, based on “caliber, breadth, and impact, the EEOC’s litigation looks very good” for the year, said Chai Feldblum, a former Democratic EEOC commissioner who is now vice chair of the AbilityOne Commission.

The agency covered the full range of issues under its jurisdiction, including launching suits on some more “cutting-edge work” like pregnancy accommodations in the workplace, she said.

The EEOC’s rules finalized in April under the Pregnant Workers Fairness Act require employers make reasonable accommodations for pregnancy and related medical conditions.

The EEOC is “coming hot out of the gate to show they intend to enforce” rights under the PWFA, Scroggins said.

The EEOC filed its first lawsuit under the PWFA on Sept. 10 and quickly followed with at least three more complaints under the new law before the fiscal year’s end. The commission also continued to target pregnancy discrimination under Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act.

At the same time, the agency is fending off challenges from Republican states and Catholic organizations seeking to block enforcement of the PWFA, largely based around the final rules’ inclusion of abortion as a related medical condition that may require workplace accommodations.

“What I think is most important about the PWFA cases, is it communicates to employers that this law stands and applies to them regardless of whatever some court might say about the regulations the EEOC has issued,” Feldblum said.

Next year, several employment attorneys said they expect the agency to include a focus on artificial intelligence-based bias in the workplace in the litigation it brings.

“We know from our experience helping employers with investigations it’s something they’re looking at very carefully,” DeGroff said.

A big case is coming, the agency is just “looking for the right one to bring,” he said.