EEOC Systemic Discrimination Initiatives: View From the Battlefields

Contributed by Jill Cheskes

Since at least 2005, the EEOC has publicly committed itself to focusing on and rooting out systemic discrimination across the U.S.  On February 2, 2012, the EEOC approved its strategic plan for the fiscal years 2012-2016 indicating that it will dedicate a significant amount of resources to remedying systemic discrimination.  Although this already had been a focus of the EEOC, in light of the fact that charges of discrimination with the EEOC are at an all-time high and the EEOC’s budget was cut, the agency has had to “think strategically about how best to target its efforts to ensure the strongest and broadest impact possible in its efforts to stop unlawful employment discrimination.”  The EEOC has decided that the best way to do this is to focus on “big cases.” 

Unfortunately for employers, what this means is that every charge filed with the EEOC now has the potential and ability to result in scrutiny of company-wide practices.  The EEOC’s initiatives are patently apparent when objectively looking at how the EEOC investigators are conducting investigations into a standard single complainant charge.

The EEOC is frequently sending out broad requests for information for a class of employees for employment practices that might not even be implicated in the individual charge.  For example, a charge of race discrimination alleging discrimination in discipline and termination has been effectively held to allow the EEOC to investigate hiring practices.

With more and broader requests for information being submitted, employers are pushing back on these requests on a more frequent basis.  In turn, this is resulting in the EEOC issuing subpoenas, something which is well within their authority to do.  This has, in turn, resulted in civil actions to enforce the subpoenas when employers continue to balk at these requests. 

An additional practical effect of the EEOC’s strategic plan is more “cause” findings being entered on a class-wide basis even if the underlying charge is on behalf of an individual.  The cause findings result in conciliation efforts between the EEOC and the employer, which have largely become an exercise in futility for employers who are finding it difficult to get information on the alleged class members in order to effectively conciliate cases.  Frustrations aside, employers need to conscientiously attempt to conciliate and document every step of the process in order to have any ability to fight a large and, perhaps, unexpected, class after litigation is filed.

Additionally, employers are seeing more and more Commissioner Charges being filed, which can be extremely broad thereby allowing for even broader investigation attempts.  Finally, the effect of this strategic plan has resulted in more class action or systemic-based lawsuits.

Dealing with the EEOC can be a landmine and litigation is erupting all over on all of these issues.  While the case law is still developing, employers should understand all these nuances when defending cases before the EEOC.