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Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations
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opposed to those that end in summary judgment. For example, in 2013, one experienced defense attorney estimated that the average attorneys fees for employers for cases that end in summary judgment was between $75,000 and $125,000; while cases that go to trial average between $175,000 and $250,000 in fees.11 Factoring for inflationary changes in legal fees, the present value of those costs is closer to $83,000 to $139,000 for cases ending in summary judgment and $195,000 to $279,000 for cases that end after a trial.12 Taking the middle of each range in present value results in average costs of $111,000 for cases ending in summary judgment and $237,000 for cases that end after trial. The Commission recognizes that many employers will find these fee estimates to be low, but because there is insufficient, publicly available data for calculating the amount that employers have expended in defending against a charge through conciliation 13 and which otherwise would be subtracted for purposes of this analysis, the Commission believes such a conservative estimate is appropriate.
To determine the average amount spent on attorneys fees, the Commission also must consider the number of cases that were the subject of 11 John Hyman, How Much Does it Cost to Defend an Employment Lawsuit, in Workforce, May 14, 2013, available at https www.workforce.com/
news/how-much-does-it-cost-to-defend-anemployment-lawsuit.
12 These calculations were made using the Department of Labor Bureau of Labor Statisticss BLS Consumer Price Index calculator, available at https www.bls.gov/data/inflation_calculator.htm.
These increases are likely conservative, as they are similar to increases in legal service costs over a shorter time frame. Historical data for the BLS
Producer Price Index for Legal Services in the MidAtlantic region, available at https www.bls.gov/
regions/mid-atlantic/data/producerpriceindexlegal_
us_table.htm, reveals that average costs for employment and labor legal services increased from 100 in December 2014 the earliest data available to 109.9 in April 2020 the most recent nonpreliminary data, an increase of approximately 10%. Similarly, the U.S. Department of Justices USAO Attorneys Fees Matrix, which only measures the change in fees between 20152020 across the legal field, reveals a roughly 12% change in hourly rate for the most experienced attorneys in the District of Columbia. See https www.justice.gov/
usao-dc/page/file/1305941/download.
13 There do not appear to be any reliable statistics on the percentage of employers who retained outside counsel to defend charges filed with the EEOC. Philip J. Moss, The Cost of Employment Discrimination Claims, 28 Maine Bar J. 24, 25 Winter 2013. Supposing conservatively that 50% of employers relied on outside counsel at an hourly rate averaging $250 in 2013 and invested 20 hours in cases during the EEO process, Id., employers would average $2,500 in legal costs during the EEO process $250 20 hours 0.5, which in present value would average $2,792. The costs for employers who use in-house counsel or human resource professionals to handle their EEOC
charges are more difficult to quantify.

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conciliation that are either resolved at summary judgment or proceed to trial.
The majority of cases of employment discrimination are not tried.14 Some studies suggest that two-thirds or more of employment discrimination lawsuits that are filed in court end in summary judgment.15 Those statistics, however, include cases filed in court after the EEOC dismissed the charge without a reasonable cause determination. In conciliation cases, by contrast, the EEOC has conducted an investigation and found reasonable cause to conclude that discrimination may have occurred.
The Commission believes it is reasonable to assume that more of these latter cases will survive summary judgment. With this assumption, the average litigation cost for employers is $174,000.16
Resolving more cases through conciliation will be beneficial to the economy as a whole because the litigation costs that the parties save can be put towards more productive uses, such as expanding businesses and hiring more employees. It is difficult to quantify how many cases in which the Commission finds reasonable cause end up being litigated in court because, if the EEOC decides to not litigate the case, the Commission does not track lawsuits filed by private plaintiffs. The Commission believes that cases in which the EEOC found reasonable cause are the most likely to be litigated by a private plaintiff because the EEOC has already determined that there is 14 Paul D. Seyfarth, Efficiently and Effectively Defending Employment Discrimination Cases, 63
AmJur Trials 127, 81 Supp. 2020 It is an undeniable fact that most employment discrimination cases do not get tried; they are either settled or disposed of via summary judgment..
15 Charlotte S. Alexander, Nathan Dahlberg, Anne M. Tucker, The Shadow Judiciary, 39 Rev. of Lit.
303 2020 Table 3 finding that among summary judgment motions in employment cases handled by magistrate judges in the Northern District of Georgia, 78% are granted in part or in full; Deborah Thompson Eisenberg, Stopped at the Starting Gate:
The Overuse of Summary Judgment in Equal Pay Cases, 57 N.Y. L. Sch. L. Rev. 815, 817 2012/2013
finding that approximately two-thirds of all equal pay act cases end at the summary judgment stage.
16 Average summary judgment fees $111,000 +
average trial fees $237,000/2 = $174,000. This figure is within the range of other estimates for average attorney fee costs. See AmTrust Financial, Employment Practices Liability EPLI Claims Trends, Stats & Examples, available at https
amtrustfinancial.com/blog/insurance-products/toptrends-employment-practices-liability-claims asserting that attorney fee costs in 2018 averaged $160,000, which in present value would amount to $167,000; Moss, supra note 7 citing Blasi and Doherty, California Employment Discrimination Law and its Enforcement: The Fair Employment and Housing Act at $0, UCLARAND Center for Law and Public Policy 2010 estimating costs to employers in state-level employment discrimination cases in California in 2010 at $150,000, which taken to present value would average approximately $180,000.

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reasonable cause to believe that the case has merit. While not all cases in which reasonable case is found and conciliation is unsuccessful are litigated, there is reason to believe that a significant portion are. The Commission itself files lawsuits in roughly 10% of the cases in which reasonable cause is found and conciliation is not successful.17 It is reasonable to believe that private plaintiffs file lawsuits in at least an additional 40% of cases, so that overall half the cases in which reasonable cause is found, but conciliation is unsuccessful, end up being litigated in court.18
Using the numbers above, if the Commission successfully conciliated only 100 more cases each year, that would save the economy over $4
million in litigation costs.19
Therefore, the Commissions rule, which establishes basic information disclosure requirements that will make it more likely that employers have a better understanding of the EEOCs position in conciliation and, thus, make it more likely that the conciliation will be successful, will result in significant economic benefits when it is successfully implemented.
Executive Order 13771
This rule is not expected to be an E.O.
13771 regulatory action because it will not impose total costs greater than $0.
As described above, the Commissions rule will result in more successful conciliations and therefore, overall cost reduction, so this is considered a deregulatory action. Details on the expected impacts of the rule can be found in the Commissions analysis above.
17 For fiscal year 2019, the Commission filed 157
lawsuits. EEOC Litigation Statistics, https
www.eeoc.gov/statistics/eeoc-litigation-statistics-fy1997-through-fy-2019. Overall, in fiscal year 2019, there were 1,427 cases in which the Commission found reasonable cause but conciliation was unsuccessful. https www.eeoc.gov/statistics/allstatutes-charges-filed-eeoc-fy-1997-fy-2019.
18 To give some sense of the scope of cases, federal courts reported that 42,053 Civil Rights cases were filed in federal court during the most recent year. https www.uscourts.gov/sites/default/
files/data_tables/fcms_na_distprofile0630.2020.pdf.
While not all these civil rights cases involve employment discrimination, and this number would include cases where a private plaintiff filed suit after the EEOC did not find reasonable cause, it illustrates that the assumptionthat half of the roughly 1,400 cases in which conciliation is unsuccessful end up in courtis likely a low estimate.
19 100 successful conciliations $45,466 average conciliation for fiscal year 19 = $4,546,600.
However, this number is offset by the litigation costs saved in 50 cases assuming half the cases would have ended in in litigation: 50 $174,000
= $8,700,000. $8,700,000$4,546,600 = $4,153,400
in savings for every 100 cases that are conciliated.

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