EEOC to Make Investigation and Litigation of Systemic Cases of Discrimination a Priority
A new report by the EEOC highlights reasons for employers to scrutinize any new or pending charges against them and to take a fresh look at their policies and procedures so as to avoid class action litigation with the agency.
On Tuesday, April 4, 2006, the EEOC adopted recommendations of an internal task force to strengthen its focus on investigation and litigation of "systemic" cases of discrimination. "Systemic" cases are "pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company or geographic location." The EEOC's adoption of the task force recommendations indicates that the agency will alter its typical focus on individual allegations raised in discrimination charges and instead concentrate its efforts on such "systemic" cases.
By adopting the recommendations, the EEOC has indicated its intent to:
- Staff systemic lawsuits using a national law firm model, based on the needs of the case and expertise required, rather than the location of the case.
- Staff systemic lawsuits and investigations in the field, with litigation support services from headquarters, eliminating the headquarters systemic litigation function.
- Create incentives, through evaluations and other means, to encourage EEOC employees in the field to identify, investigate, and litigate systemic cases.
- Provide, support, and train EEOC employees on technology that is necessary to investigate and litigate complex systemic cases and that allows staff in different offices to work together.
- Perform expanded investigations of individual charges where it may lead to discovery of systemic discrimination.
- Make Commissioner Charges and Directed Investigations, which are not necessarily instigated by an individual charge, a regular part of systemic enforcement efforts.
- Provide resources for pre-filing activities so that the agency may conduct substantial investigation, research, expert analysis, potential claimant interviews, and other work before filing a lawsuit.
- Shift some resources away from individual or small class cases to larger systemic cases.
- Conduct outreach to community organizations, workers, and the plaintiffs' bar, and coordinate with state and local agencies to identify areas of systemic discrimination.
What does this mean for employers?
The task force recommendations underscore that it is critical to be diligent, accurate, and well-prepared in responding to charges.
Pending Class Charges
If a charge includes class allegations, there is a likelihood of more intensive investigation, a probable cause determination, and EEOC interest in litigation. Plaintiffs' attorneys may seek to capitalize on the EEOC's new focus by including multi-plaintiff or class allegations in charges, in the hope of garnering a probable cause determination or encouraging a broader investigation.
Individual Charges
Individual charges may also lead to an EEOC investigation of class-wide discrimination. If a pending individual charge raises questions regarding a class of employees, consider whether policy or procedure changes might be useful. The EEOC may refuse to send an individual charge through its mediation program if it believes that it may have a case of systemic discrimination. Therefore, EEOC refusal of a request to mediate may be a sign that the agency will vigorously pursue the investigation and is more likely to issue a probable cause determination.
Other Employer Considerations
Even if you have no pending charges, the EEOC's focus on systemic discrimination serves as a reminder to take the time to audit policies and procedures and carefully examine any adverse impact they may have on a protected class of individuals. Consider the following:
- Are there unexplained wage disparities between people in different protected classes?
- Are employees in protected classes concentrated in particular job functions?
- Is discipline conducted in a consistent fashion?
- Is an anti-harassment policy with a reporting mechanism in place?
- Have you had multiple complaints of a similar type of allegedly discriminatory conduct?
- Do you conduct investigations of complaints, and are those investigations completed in a uniform manner?
- Have you conducted anti-discrimination and anti-harassment training?
- Are your hiring procedures uniform and based on criteria relevant to the job?
- Do you have problems retaining employees who are members of particular protected classes?
Keep in mind that documents created in such an audit process may be discoverable in later litigation. Any internal analysis should be conducted in good faith and with a commitment to making changes if the analysis indicates they are warranted. You may wish to consult with counsel before embarking on such an audit.
An EEOC investigation or lawsuit is an expensive and time-consuming proposition for employers, particularly when a whole class of individuals is involved. In light of the EEOC's Systemic Task Force Report, taking steps to anticipate and avoid charges, particularly those with potential class or systemic ramifications, is especially important. If a charge is filed, a careful and thorough defense should take into account this new mindset of the EEOC. To avoid an unwanted confrontation with the EEOC, employers are also well-advised to continually audit their internal policies and procedures.
The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.