Return to home pageThis study reviewed five years of litigation, Fiscal Years 1997-2001.(1) The study includes an analysis of monetary benefits recovered, suits filed and resolved, staffing and litigation workload. It also contains a five year cumulative program overview, which details the total number of trials conducted by the legal units. The study concludes with an in-depth analysis of types of resolutions and the win/loss record of each district office and of the litigation program overall.
Tables IA and IB shows the monetary recovery by statute obtained through the administrative enforcement process and through litigation for each fiscal year from 1997 - 2001 and cumulatively for the five year period. First, it should be noted that the components of the total monetary recovery obtained through the enforcement process include projected amounts, such as the estimated value of new jobs, expected promotions and recalls projected out for one year, that traditionally have not been included in the total monetary recovery obtained in litigation. Thus, these Tables, while reporting the total monetary recovery from the enforcement process, also break that recovery down into two categories: "Actual," which corresponds to the amounts included in the litigation total, e.g., back pay, the value of restored benefits, compensatory damages, punitive damages, liquidated damages (i.e., monies actually recovered), and "Projected," which includes money not yet actually obtained but anticipated as likely to be obtained in the future. Consequently, the most accurate comparison of the monetary recoveries obtained through the enforcement process and in litigation focuses on the actual amounts recovered in enforcement with the total amount obtained in litigation.
When such a comparison is made for the five year period, it indicates that the charge process resulted in approximately $821 million in actual monetary recovery while the much smaller litigation program resulted in almost half that amount - $409.7 million (see Table IA). Recoveries under Title VII account for more than half the monies obtained in both enforcement ($451.6 million) and litigation ($271.1 million); while monies recovered under the ADA ($184.4 million) account for the second largest recovery in the enforcement process, monies obtained under the Age Discrimination in Employment Act (ADEA) ($104.4 million) constitute the second largest recovery in litigation.
Table IB further breaks down the monetary recovery in the Enforcement process by the amount recovered through the mediation program. The actual monies obtained through mediation began with a low of $7.2 million in FY 97 and grew to a high of $93.3 million in FY 2000. The total five-year actual amount obtained through mediation is $235.1 million or 28.6% of the total actual monetary recovery, compared with $585.9 million or 71.4 % of the total actual monetary recovery obtained through the other aspects of the administrative process. After extracting the amount garnered in mediation, the amount otherwise obtained ($585.9 million) compares favorably to the amount obtained through litigation ($409.7), which, as mentioned above, is a much smaller program dealing with many fewer cases than the administrative process. In fact, the actual monies recovered through litigation equal 69.9% of the actual monies recovered in the administrative process.
Table II shows the cumulative number of lawsuits filed by each legal unit by basis for the five year period. Tables III - VII show the number of suits filed by each legal unit by basis for each fiscal year. Each of these tables includes breakdowns of the number of class and individual suits filed as well as the number of direct suits, interventions, subpoena enforcement actions, temporary restraining orders and administrative agreement enforcement actions. Over the five year period, OGC filed a total of 1,963 suits; of those, 1768 were direct suits, 14 were interventions, 162 were subpoena enforcement actions, 15 were Temporary Restraining Orders and four were suits to enforce administrative agreements resolving charges. A total of 570 direct suits and interventions (31.9% of all filings) were filed on behalf of a class; another 1,212 (68.1%) were filed on behalf of individuals. Interventions over the five year period account for less than 1 % of all suits filed (0.71%) and of suits filed on the merits (0.79%)
Table II also illustrates that suits alleging discrimination based on sex account for the largest number (732) over the five year period, with suits alleging retaliation constituting the second most frequently alleged basis (541), race discrimination suits the third most often alleged basis (328), disability a close fourth (311), and age the fifth (199). Thus, of the total number of bases alleged (2432)(2), suits alleging sex discrimination account for 30.1%; suits alleging retaliation constitute 22.2%; those alleging race discrimination comprise 13.5%; disability 12.8%; age 8.2%; national origin 7%; religion 4.3%; equal pay 1.6%; and color 0.25%.
Tables III - VII demonstrate the effectiveness of focusing on specific types of cases and issues. For example, since 1997, increasing the number of class cases on the litigation docket has been a priority. "Class" cases are defined as suits on behalf of multiple aggrieved individuals who were victims of discriminatory employment practices as well as suits on behalf of one or more individuals who were victims of discriminatory employment policies. By filing these types of suits, the EEOC often obtains injunctive and remedial relief for a greater number of employees and has a broader educational and deterrent impact on employers than it would have bringing a suit on behalf of one person.
As Table III indicates, in FY 1997, the Office of General Counsel filed 93 class cases. This number was exceeded in each of the successive years, peaking in FY 2001 (Table VII), with a total of 133 class cases filed, a 43% increase in the number of class cases filed in FY 1997. As discussed in the OGC report on the Government Performance and Results Act (GPRA) Goals for FY 2001, in FY 1997, the number of class cases on the active litigation docket was 112, or 30% of the total docket; by FY 2001, this had increased to 210 class cases on the active litigation docket, or 40% of the total docket.
Another priority identified in FY 1997 was to increase the number of suits alleging equal pay violations. In that year, the Commission filed a total of four suits under the Equal Pay Act (EPA) and concurrently under the EPA and Title VII of the Civil Rights Act of 1964.(3) (See Table III.) Again, this number was exceeded in each of the following years, peaking in FY 2001 (Table VII) when OGC filed a total of 12 suits under the EPA and the EPA/Title VII, a threefold increase over the number filed in FY 1997. After the baseline year of FY 1997, OGC filed 36 suits alleging equal pay violations in just four years, averaging nine such suits each year.
The number of suits alleging disability discrimination dropped in fiscal years 1999 (54 filed; Table V) and 2000 (25 filed; Table VI) from a high in fiscal years 1997 (83; Table III) and 1998 (85; Table IV). This drop is directly related to the Supreme Court's decisions in June 1999 in Sutton v. United Airlines; Murphy v. UPS and Albertsons, Inc. v. Kirkingburg, in which the Court narrowed the definition of disability by requiring mitigating measures to be considered in determining whether an individual has a "substantially limiting" impairment. Thus, for example, an individual with insulin dependant diabetes, historically considered disabled, might not be "disabled" under the Supreme Court's interpretation of the statute if the individual is able to control his/her diabetic condition with the insulin. In the aftermath of these three decisions, the agency refocused its efforts and analysis of Americans with Disability Act (ADA) cases and has gradually rebuilt the ADA litigation program. In FY 2001 (Table VII), OGC filed 64 suits alleging disability discrimination; 39 more than the previous fiscal year.
Table VIII shows the cumulative number of lawsuits resolved by each legal unit by basis for the five year period. Tables IX - XIII show the number of suits resolved by each legal unit by basis for each fiscal year. Each of these tables includes breakdowns of the number of class and individual suits resolved as well as the number of direct suits, interventions, subpoena enforcement actions, temporary restraining orders and administrative agreement enforcement actions. Over the five year period, OGC resolved a total of 1,723 suits; of those, 1,534 were direct suits, 18 were interventions, 151 were subpoena enforcement actions, 17 were Temporary Restraining Orders and three were suits to enforce administrative agreements resolving charges. Of the 1,552 direct suits and interventions resolved, 439 resolved suits (28.3%) had been brought on behalf of a class; another 1,113 (71.7%) of those resolutions had been filed on behalf of individuals.
Similar to the distribution of cases filed as shown in Table II, Table VIII shows that suits alleging discrimination based on sex account for the largest number (641) resolved over the five year period, with suits alleging retaliation constituting the second largest number resolved (427); the third largest number of suits resolved were those alleging race discrimination (297), with disability (292) the fourth largest number of suits resolved. The number of age cases resolved (205) is almost identical to the number filed (199); likewise the EPA cases resolved (35) are close to the number filed (40).
Table XIV shows the attorney staffing in each legal unit for each of the fiscal years 1997 through 2001.(4) The table includes Regional Attorneys, Supervisory Trial Attorneys and line or Trial Attorneys in each count. The lowest two years, FY 1997 (196 attorneys) and FY1998 (195 attorneys), were also the years in which the fewest number of class suits were filed (93 in FY 1997, Table III; 109 in FY 1998, Table IV). When more attorneys were hired in FY 1999 (248 total on board), the number of class cases filed rose to 129 (Table V). When the attorney numbers declined in FY 2000 (226), the number of class suits filed decreased to 106. Predictably, when additional attorneys were again hired in FY 2001 (248 total on board), the number of class suits filed increased also - 133 were filed in that fiscal year (Table VII).(5)
This Table shows the litigation workloads in each of the legal units for each fiscal year. The litigation workload consists of the active suits on the docket of each legal unit at the beginning of each fiscal year plus the number of suits filed during that fiscal year. It does not include administrative duties, enforcement cases, outreach activities, Freedom of Information Act (FOIA) requests or any other duties that are regularly assigned to attorneys in the legal units. In fact, a study of attorney time conducted in fiscal year 1998 discovered that legal staff spent 44.9% of their time on litigation matters (after a complaint was filed); 20.8% of their time assisting investigators with charge resolution; 6.1% on responding to public requests for information; and 1.7% on public outreach and education.(6)
Tables XIV and XV when viewed together show a correlation between the number of attorneys on board and the litigation workload. In FY 1997, when 196 attorneys were on staff (Table XIV), the total litigation workload was 582 (Table XV); in FY 1999, when the number of attorneys on board rose to 248 (Table XIV), the workload had increased to 890 (Table XV). In FY 2000, the number of attorneys decreased to 226 (Table XIV); the workload also decreased (to 875; Table XV). Although the workload was lower in FY 2001 (842; Table XV), while the number of attorneys rose again (248; Table XIV), this was due to the fact that more cases were resolved in FY 2000 - a total of 405 (Table XII), compared with 319 in FY 1999 (Table XI) and 295 in FY 1998 (Table X). Thus, the number of suits carrying over to FY 2001 was fewer than in previous years, resulting in a lower workload.
Table XVI serves as the summary table for the five-year period of the litigation program review. It shows the total number of cases filed and resolved, both broken down by the number of class and individual suits, as well as the total monetary benefits and the average monetary benefit per case recovered by each legal unit. Additionally, it includes the cumulative number of trials conducted by each legal unit, the average number of attorneys in each legal unit and the average number of cases filed per attorney in each district office. Those legal units with the highest number of cases filed (New York - 119; Philadelphia - 113; Baltimore - 100) are among the offices with the highest attorney averages (New York - 17.6 attorneys; Philadelphia - 10.6; Baltimore - 14.6). Those legal units with the highest number of class cases filed (New York - 71; Chicago - 42) are also among the offices with the highest attorney averages (New York - 17.6 attorneys; Chicago -15.6).
Among other things, Table XVI shows that the average monetary benefit per case resolved over the five year period equals $263,945, with a range of $26,400 on average among cases resolved by the Systemic Litigation Services, to $1,609,130 on average among cases resolved in Miami.(7) Within those extremes, Chicago ($633,766 average per case) and New York ($607,278 average per case) account for the highest averages. Dividing the total monetary benefits obtained ($409,641,905) by the average number of attorneys (231) over the entire time period yields an average monetary amount of $1,773,341.6 recovered per attorney on board.
Table XVII shows the types and frequencies of the resolutions of each legal unit by basis for the five year period. Tables XVIII through XXII show the types and frequencies of the resolutions of each legal unit for each fiscal year. As indicated in Table XVII, over the entire five year period, 57.73% of all resolutions were by consent decree; 27.45% were resolved by settlement agreement; 5.54% by favorable court order; 7.15% by unfavorable court order; and 2.13% by voluntary dismissal. Thus, the total percentage of successful resolutions (consent decrees, settlement agreements and favorable court orders) was 90.72%.
Table XVII also reveals that over the five years studied, the field legal units conducted 87 trials. Of these, four could not be categorized as either a win or a loss; three resulted in a "hung jury" and a fourth was settled after an adverse jury verdict and a grant of a new trial. The Commission won 50 of the remaining 83 trials, for a success rate of 60.24%. This compares very favorably with the success rate for the private bar. A recent study of data from the Administrative Office of the U.S. Courts showed that private plaintiffs prevailed in only 26.8% of all employment discrimination cases tried in the federal courts from 1978 to 1997. Schwab, How Employment Discrimination Cases Fare in the Federal Courts (May 19, 2001) (report filed in the fairness hearing for Ingram v. The Coca-Cola Company, District of Columbia).
Table XXIII demonstrates the success rate of the appeals of trials. Of the 87 trials, 26 were appealed either by the EEOC or defendants. Of these, five were settled on appeal and six were pending in the appellate court at the time of this study. Fifteen of the 26 cases appealed were decided; the EEOC won 12 of those and lost only three. This represents an overall success rate of 80%, which compares extremely favorably to the success rate of approximately 16% for the private bar. Eisenberg and Schwab, Double Standard on Appeal: An Empirical Analysis of Employment Discrimination Cases in the U.S. Courts of Appeals (July 16, 2001).
In general, the party that wins in the district court has much greater likelihood of success on appeal. Thus, Eisenberg and Schwab report that for appeals decided between 1988 and 1997, employment discrimination plaintiffs won 56.4% of the appeals where they were the prevailing party below, but only 5.8% of the appeals where they had lost below. Id. At 8-9. Broken out this way, the EEOC won 10 of the 11 cases in which we had won below, or 90.9%; EEOC won two out of the four cases where we had lost below, or 50%. Both percentages are vastly greater than the success rates for the private bar.
Table XXIV indicates that over the five year period, the Commission won 17 motions for summary judgment or for default judgment. During the same period, defendant won 83 summary judgment or dismissal motions. Appeals were taken, either by EEOC or by defendants, in 54 of the suits resolved by these court orders. Three of those appeals were pending at the time of this study. The Commission won 16 of the 51 appeals that were resolved; 14 suits, which had been lost at the district court level, were settled on appeal (one of these had been won on appeal prior to settling). Thus, of the 51 appellate resolutions, the EEOC obtained successful outcomes in 29 or 56.86%.
These statistics, however, present an incomplete picture because they do not include a tally of the motions for summary judgment filed by defendants and defeated by the EEOC. Unfortunately, these numbers have not historically been tracked in a database.(8) Nine field offices have been able to reconstruct those numbers for the five year period under study. Those nine offices together defeated a total of 77 summary judgment motions filed by defendants. (Table XXIV.)
Given the data reported, EEOC defeated 3.5 motions for every motion that was not defeated. Extrapolating from the results in those nine offices (assuming the other offices had a similar success rate), EEOC would have successfully defeated an additional 213.5 motions, for a total of approximately 290. The success rate on summary judgment motions would thus be 307 (290 motions defeated plus 17 won) out of a total number of 390 or 78.7%.
1. The information forming the basis of this study was drawn from the General Counsel Database the weeks of June 24 through July 15, 2002. To the extent that it differs from previously reported data, it is the result of the database being under constant verification and correction.
2. The total number of bases alleged is more than the number of suits filed because many suits allege more than one basis of discrimination.
3. This does not include wage claims based on sex filed only under Title VII.
4. At the end of FY 1999, attorneys were hired in area/local offices to provide legal assistance to investigators and to enhance litigation development in those offices.
5. Class cases are generally staffed with more than one attorney due to their complexity; almost all class cases always require the use of experts, often entail complicated database analyses, cover longer periods of time and numerous discriminatory events involving several individual victims and decision-makers compared with the typical one event in time in issue in an individual case.
6. Another 13.7% of attorney time was spent on leave or on details to non-litigation activities, such as acting deputy director or acting administrative judge. Other activities, such as responding to inquiries from Congress, charging parties, respondents, and the general public; attending or conducting essential training; attending staff meetings; reporting litigation activity and verifying litigation data, account for 12.8% of attorney time.
7. Miami obtained the highest recovery in a single case in the Commission's history: $81.5 million in Shores & EEOC v. Publix Super Markets, Inc.
8. The IMS does contain a field to track this information.
This page was last modified on August 13, 2002.