5 Key Trends For Workplace Class Action Litigation For 2019: Trend #3 Governmental Enforcement Litigation Trends In 2019

Author:Seyfarth Shaw LLP
Profession:Seyfarth Shaw LLP

Seyfarth Synopsis: The third key trend from our 16th Annual Workplace Class Action Litigation Report involves governmental enforcement litigation, including an overview of priorities and filings by the EEOC, the U.S. Department of Labor, and the National Labor Relations Board. Read the full breakdown below!

On the governmental enforcement front, the past several years have demonstrated that the Trump Administration and its appointed officials at the EEOC have not appreciably deviated from the Commission's spirited pursuit of litigation filings and settlements.

This past year, however, posed unique challenges beyond the control of the EEOC. The Commission is a five-seat agency that has operated without a full panel of five Commissioners for the entirety of the Trump Administration. When former Commissioner Chai Feldblum's term expired at the end of last year, the result was a lack of quorum on the Commission, which hobbled the EEOC's efforts to pursue its mission. Although President Trump had re-nominated Commissioner Feldblum for another term, she was not confirmed by the Senate due to her perceived views on LGBT issues. This resulted in an empty Commissioner seat and a loss of quorum for roughly one-third of the year. Either by coincidence or as a result, the pace of EEOC lawsuit filings and settlements slowed significantly. Despite this setback, there was only a modest 4% reduction in aggregate recoveries relative to the totals from 2018, thereby demonstrating the Commission's commitment to resolving disputes expediently.

Although the total number of new lawsuits filed by the EEOC decreased, when considered on a percentage basis, the distribution of cases filed in terms of the theory of discrimination alleged remained broadly consistent compared to 2018. Title VII and ADA cases once again comprised the majority of cases filed by the Commission. This suggests that the priorities and patterns of government enforcement litigation have not shifted dramatically under the Trump Administration. During 2019, the new agency appointees were installed during the latter half of the year, which inevitably will result in delayed policy changes. Compounded by the lack of quorum at the Commission for part of this past year, additional time may be necessary for the EEOC to incubate and execute fundamental changes to enforcement priorities. Stepping into a new year with the new EEOC officials in place and a quorum at the Commission, 2020 may finally reveal what changes are in store for governmental enforcement litigation.

During 2019, the Commission filed 144 merits lawsuits and 8 subpoena enforcement actions. This is a stark decline relative to the 197 merits suits and 20 subpoena enforcement actions of 2018, which constituted an over 30% reduction in total actions commenced by the Commission year over year. This past year also marked the third year of the EEOC's 2017-2021 Strategic Enforcement Plan ("SEP"), which was implemented to guide enforcement activity. The six enforcement priorities include: (1) the elimination of systemic barriers in recruitment...

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