This Annual Report on EEOC Developments—Fiscal Year 2018 (hereafter "Report"), our eighth annual publication, is designed as a comprehensive guide to significant EEOC developments over the past fiscal year. The Report does not merely summarize case law and litigation statistics, but also analyzes the EEOC's successes, setbacks, changes, and strategies. By focusing on key developments and anticipated trends, the Report provides employers with a roadmap to where the EEOC is headed in the year to come.
This year's Report is organized into the following sections:
In Part One—A Practical Primer for Dealing with the Equal Employment Opportunity Commission—Littler Shareholder James A. Paretti, Jr. provides insight into the operations of the EEOC, where he served as Chief of Staff and Senior Counsel to Acting EEOC Chair Victoria A. Lipnic. This discussion touches on an employer's key concerns with the investigation process, national mediation agreements, insights on EEOC guidance and regulations, and anticipated changes in the coming year.
Part Two outlines EEOC charge activity, litigation and settlements in FY 2018, focusing on the types and location of lawsuits filed by the Commission. More details on noteworthy consent decrees, conciliation agreements, judgments and jury verdicts are summarized in Appendix A to this Report. A discussion of cases in which the EEOC filed an amicus or appellate brief can be found in Appendix B.
Part Three focuses on legislative and regulatory activity involving the EEOC. This chapter includes a discussion of not only formal rule-making efforts, but also informal guidance on a variety of new and evolving workplace concerns, and the holding of public meetings on several agency priorities. This chapter highlights recent and emerging trends at the agency level, particularly as the Commission's composition is in transition.
Part Four summarizes the EEOC's investigations and subpoena enforcement actions, particularly where the EEOC has made broad-based requests to conduct class-type investigations. Case law addressing the EEOC's authority to do so is discussed in this chapter as well. Appendix C to this Report is a companion guide, summarizing select subpoena enforcement actions undertaken by the EEOC during FY 2018.
Part Five of the Report focuses on FY 2018 litigation in which the EEOC was a party. This discussion is broken into several topic areas, including: (1) pleading deficiencies raised by employers; (2) statutes of limitations cases involving both pattern-or-practice and other types of claims; (3) the state of employer challenges based on the EEOC's alleged failure to meet its conciliation obligations prior to filing suit; (4) intervention-related issues, both when the EEOC attempts to enter a case through intervention and when third parties attempt to join as plaintiffs in EEOC-filed lawsuits; (5) class discovery issues in EEOC litigation, including the scope of discovery in class-based or pattern-or-practice cases, and the use of experts; (6) general discovery issues involving both employers and the EEOC in litigation between the parties; (7) favorable and unfavorable summary judgment rulings; (8) trial-related issues; and (9) circumstances in which courts have awarded attorneys' fees to prevailing parties.
Appendices A-D are useful resources that should be read in tandem with the Report. Appendix A includes summaries of significant EEOC consent decrees, conciliation agreements, judgments, and jury awards. Appendix B highlights appellate cases where the EEOC has filed an amicus or appellant brief, and decided appellate cases in FY 2018. Appendix C includes information on select subpoena enforcement actions filed by the EEOC in FY 2018. Appendix D highlights notable summary judgment decisions by claim type.
We hope that this Report serves as a useful resource for employers in their EEO compliance activities and provides helpful guidance when faced with litigation involving the EEOC.
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