This Annual Report on EEOC Developments—Fiscal Year 2021 (hereafter “Report”), our eleventh 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:

Part One provides an overview of EEOC and employer diversity initiatives and the challenges that arise in their implementation. Employers, federal agencies, and the courts have long recognized the importance of fostering a diverse and inclusive work environment, but what does that entail, and what are the pitfalls? This section discusses the history of efforts to make workforces more representative, the intersection between diversity, equity and inclusion (DEI) programs and employment laws, and lawful steps employers can take to achieve their DEI goals.

Part Two outlines EEOC charge activity, litigation and settlements in FY 2021, 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 the current composition of the EEOC, its regulatory activities, and other agency priorities and initiatives.  This chapter includes a discussion of potential changes to the Commission in the coming months, how the EEOC’s guidance and policies have evolved in the face of COVID-19, and where the agency’s priorities lie.

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 in pursuit of its goal to combat systemic discrimination. Appendix C to this Report supplements this section in summarizing subpoena enforcement actions filed by the EEOC during FY 2021.

Part Five of the Report focuses on FY 2021 litigation in which the EEOC was a party. This discussion is broken down into numerous topic areas, including: (1) pleading deficiencies raised by employers and the EEOC; (2) statutes of limitations cases involving both pattern-or-practice and other types of claims; (3) intervention and consolidation of claims with private counsel representing charging parties; (4) class issues in EEOC litigation; (5) other critical issues in EEOC litigation, including protective orders, ESI and experts; (6) general discovery issues in litigation between the parties; (7) favorable and unfavorable summary judgment rulings, which also are summarized in greater detail in Appendix D; (8) default judgments against employers; (9) trial-related issues and those tied to remedies and settlements; and (10) 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 verdicts. Appendix B highlights appellate cases where the EEOC has filed an amicus or appellant brief and decided appellate cases in FY 2021. Appendix C includes information on select subpoena enforcement actions filed by the EEOC in FY 2021. 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.

Click here to read the full Report.