Following a "cause" finding in an Equal Employment Opportunity Commission charge of discrimination investigation, the agency issues a right to sue letter to the charging party or agrees to sue the employer on that person’s behalf. The EEOC only litigates a small number of its cause determinations, and the risk of a government suit often determines whether employers agree to settle charges during the conciliation phase.

Last week, the EEOC released its annual report summarizing its litigation over the past fiscal year. For fiscal year 2024, the EEOC filed 110 lawsuits. The breakdown of those suits helps explain the agency’s litigation priorities. Of the 110 lawsuits, 48 claimed violation of the Americans with Disabilities Act. This proportion is consistent with the increasing number of ADA charges filed each year. Forty of the suits included a retaliation element, demonstrating the EEOC’s commitment to pursuing relief for alleged whistleblowers. In fiscal year 2024, the EEOC filed its first five lawsuits under the Pregnant Workers Fairness Act. Interestingly, the number of age, sexual orientation, and gender identity discrimination suits remained a small percentage of the EEOC’s overall litigation workload.

Litigation against the EEOC can be considerably more expensive and time consuming than a suit filed by a private attorney. EEOC attorneys often engage in extensive discovery efforts well beyond those sought by a private lawyer working on a contingency fee. When estimating the chances of the EEOC suing, we look to whether the underlying claims involve alleged systemic discrimination or contain allegations of discrimination in areas of enforcement emphasis identified by the agency. This information helps with the estimate of the time, expense, and risks involved in potential employment discrimination litigation.

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