Experts are predicting a dramatic increase in discrimination cases filed by the U.S. Equal Employment Opportunity Commission (EEOC) against employers in 2022. A report by Chicago-based law firm, Seyfarth Shaw, found that the EEOC filed 59 lawsuits in September 2021 compared to 33 lawsuits in September 2020. The Benefits Pro news article, “‘More aggressive’ EEOC Likely to Sue More Employers in 2022,” by Trudy Knockless, provides possible explanations for this emerging pattern.
The article explains that while the official priorities of the EEOC have remained the same under the Biden administration, a change in leadership has brought about new rules and a greater emphasis on certain issues. These changes, it is argued, have made the EEOC more aggressive and likely to file more cases related to protecting vulnerable workers, age discrimination, and workplace harassment. Under the Biden administration, multiple EEOC rule changes made by the Trump administration have been rescinded.
One of these rescinded rules would have required the EEOC to provide more information to employers during the conciliation process, such as the identity of witnesses, a legal basis for discrimination findings, and a summary of the facts leading to the EEOC’s decision. The article quotes EEOC chairwoman Charlotte Burrows, who argues that repealing this rule “restores the commission’s flexibility to tailor the conciliation process to the facts and circumstances of each case, thus increasing the likelihood of a successful resolution.”
The article states that the official enforcement priorities of the EEOC include, “eliminating barriers in recruitment and hiring, protecting vulnerable workers, ensuring equal pay protections for all workers, preserving access to the legal system, preventing systemic harassment, and addressing emerging and developing issues.” The article quotes legal expert, Matthew Gagnon, of Chicago-based law firm Seyfarth Shaw, who explains that “‘all of these things are subject to interpretation based on who’s making up the commission at the time and who are the lead attorneys at the EEOC.’” In other words, while the EEOC’s priorities remain the same from one administration to the next, each administration makes decisions about directions to take and issues to prioritize.
Gagnon expects one of these emerging and developing issues to include conflicts between the rights of LGBT employees and the religious freedoms of employers in the wake of the Supreme Court’s ruling in Bostock v. Clayton County. That said, Gagnon acknowledges that it can be difficult to tell what the EEOC is currently prioritizing because it can take years between the launch of an investigation and the filing of a lawsuit. With time, the EEOC’s priorities under the Biden administration will become more apparent.
Keeping your hotline top of mind will help employees to speak-up before issues grow to the point of an EEOC case. Learn how to encourage people to use your hotline by reading our article here.