Overview

On February 23, 2024, the EEOC issued its 2023 Annual Performance Report,[1] which details the EEOC’s main priorities from 2023 and the inroads it made toward accomplishing same. Noteworthy for class action litigation, one of the EEOC’s main priorities was “tackling” systemic discrimination, which involves multiple, alleged victims of allegedly discriminatory policies. The EEOC touts the following accomplishments in tackling systemic discrimination, noting that, during the year 2023, it had resolved more than 370 systemic investigations on the merits, 14 systemic lawsuits, and various federal sector class cases involving discriminatory patterns, practices, and/or policies. Perhaps most noteworthy was the fact that, during fiscal year 2023, the EEOC filed 25 lawsuits on behalf of victims of alleged systemic discrimination—almost double the number of systemic suits filed in each of the past three fiscal years and the largest number of systemic filings since 2018. Such lawsuits comprised 17.5% of all merits suits filed in fiscal year 2023. The systemic suits filed in 2023 involved multiple protected categories, including hiring claims based upon sex, race, national origin, age, and disability; harassment claims based upon sex and race; claims of failure to accommodate based upon disability; disability claims based upon unlawful application of qualification standards; discharge claims based upon disability, race, color and retaliation; and a sex-pay claim.

The sharp increase in systemic discrimination lawsuits represents a broader trend within the EEOC. During fiscal year 2023, the EEOC filed a total 143 lawsuits on behalf of alleged victims of workplace discrimination—an increase of more than 50% over fiscal year 2022 filings.  This may be partially due to the fact that the EEOC received 81,055 new charges of discrimination in 2023—more than a 10% increase since 2022. Relatedly, the EEOC handled more than 522,132 calls from the public through the agency contract center, an increase of almost 10% from the fiscal year 2022, and 86,008 emails, an increase of more than 25% from fiscal year 2022. While it is difficult to pinpoint why there has been such an uptick in EEOC filings generally, the events of recent years, including the “Me Too” movement, the “Black Lives Matter” movement, and the 2023 implementation of the Pregnant Workers Fairness Act (“PWFA”), may partially account for these increases. The current political landscape, as well as the fact that the EEOC has recently implemented more user-friendly processes for reporting instances of discrimination and retaliation, may also help explain such trends.

Implications for Employers

Regardless of the reasons for the uptick in lawsuits and EEOC complaints, employers must be prepared to address these trends proactively. The best way to do so is to prevent systemic discrimination before it starts. This includes implementing consistent, well-defined policies regarding pay, discipline, hiring, and evaluation procedures—regardless of employees’ race, sex, disability, or any other protected characteristic. Employer policies should include clearly-defined processes for reporting potential discrimination, harassment, and retaliation and mission statements regarding diversity and inclusion. In addition, diversity trainings for all employees, not just supervisors and decision-makers, go a long way in not only ensuring compliance with the applicable laws, but also in boosting employee morale and confidence in their employers.

[1] You can review the full text of the Annual Performance Report here: 2023 Annual Performance Report | U.S. Equal Employment Opportunity Commission (eeoc.gov) .