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EEOC Targets Systemic Discrimination

08.05.2013

Earlier this year, the Equal Employment Opportunity Commission (EEOC) announced that it will be specifically focused on identifying and investigating systemic discrimination cases. This is somewhat of a change from the EEOC’s previous practices. Employers may be more familiar with the EEOC’s role in investigating Charges of Discrimination filed by individual employees. Generally, individual employees may file their allegations of harassment, discrimination, and retaliation with the EEOC (such allegations may also be filed jointly with the EEOC and the applicable state agency, such as the Nebraska Equal Opportunity Commission). The EEOC, alone or in conjunction with the applicable state agency, then investigates the allegation and reaches a conclusion as to whether the investigation indicates that unlawful discrimination, harassment, or retaliation has occurred.

Although the EEOC will continue to handle individual Charges of Discrimination, as part of its new Strategic Enforcement Plan (SEP), the EEOC will focus on systemic discrimination cases. The EEOC describes systemic discrimination as a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area. Specifically, the EEOC has identified the following examples of prohibited systemic practices: discriminatory barriers in recruitment and hiring; discriminatorily restricted access to management trainee programs and to high level jobs; exclusion of qualified women from traditionally male-dominated fields of work; disability discrimination such as unlawful pre-employment inquiries; and age discrimination in reductions in force and retirement benefits.

A systemic discrimination investigation may be triggered in a variety of situations. First, when investigating a Charge, the EEOC typically will serve the employer with requests for additional information and documents. The EEOC has considerable discretion in requesting information and documents and such evidence may certainly indicate whether the employer’s past and current business practices have resulted in systemic discrimination. To the extent an employer fails to fully respond to an EEOC’s request for information, the EEOC may also issue a subpoena which, if ignored, may be enforced by the EEOC as part of a subpoena enforcement action in federal court. Second, the EEOC has the authority, pursuant to Title VII of the Civil Rights Act of 1964, to issue charges on its own initiative. Such charges are sometimes referred to as "Commissioner Charges." Historically, the EEOC has issued relatively few Commissioner Charges. However, more Commissioner Charges are anticipated based on the EEOC’s stated goal of increasing its focus on systemic discrimination. Thus, an employer may be selected by the EEOC for further investigation even absent a Charge of Discrimination filed by a current or former employee. Third, the EEOC may file a lawsuit in its own name or it may intervene in a lawsuit filed by an individual employee.

The EEOC has identified a number of resources that will assist it in identifying systemic discrimination. In addition to having access to all of the Charges of Discrimination filed by individuals, the EEOC has access to various data such as the information submitted by private and public employers with respect to such employer’s job categories and the racial, gender, and national origin characteristics of the workforce. The EEOC also has access to social science analysts who can conduct analytical studies with respect to identified industries and professions to determine whether systemic discrimination appears to exist.

Employers cannot predict whether they will be targeted by the EEOC to determine whether systemic discrimination exists at their workplace. However, given the EEOC’s renewed interest in pursuing systemic discrimination claims, employers should consider a number of preventative steps. For example, employers should carefully investigate and respond to individual Charges of Discrimination while being mindful that the information provided may cause the EEOC to expand the scope of its investigation and consider whether systemic discrimination has occurred or is occurring. Similarly, employers should consider whether Charges of Discrimination brought by individual employees are indicative of a more widespread problem within the workplace. Employers should also carefully analyze their EEO-1 reports for data that may cause the EEOC to conduct further investigation. Finally, employers should consider conducting an internal audit of their practices with respect to background checks, hiring, promotions and transfers, as well as the resulting effect on the workforce.

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