• EEOC Approves New Strategic Plan Focusing on Systemic Discrimination
  • March 2, 2012 | Author: Mickey Silberman
  • Law Firm: Jackson Lewis LLP - Denver Office
  • In its latest Strategic Plan, the Equal Employment Opportunity Commission has indicated it will dedicate significant resources to focus on remedying systemic discrimination.  Under the Agency’s Strategic Plan for years 2012-2016, approved on February 22, 2012, the EEOC will target widespread patterns or practices of discrimination, such as discriminatory policies having a broad impact on an industry, profession, company, or geographic area.

    The Agency first announced its campaign against “high impact” systemic discrimination cases in 2005, when it established its Systemic Discrimination Task Force.  Since then, employers increasingly have seen the EEOC use individual charges of discrimination as launching pads for broad investigations into policies and practices affecting large classes of applicants or employees, regardless of whether the underlying charge had merit.

    According to the 2012-2016 Plan, the Agency has seen a dramatic increase in the number of discrimination charges filed since the economic downturn.  This, along with a recent cut of over $7 million in its budget, according to the Agency, has “created a need for the EEOC 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 concluded that the most efficient way to target discrimination is to find and pursue big cases.

    That is not to say the Agency will not pursue individual claims of discrimination.  The Plan states, “Even as the EEOC increases its percentage of these cases, it will continue to pursue individual cases of discrimination. Strategic selection of individual cases furthers the agency’s statutory mandate of preventing unlawful employment discrimination.”

    Still, the EEOC’s heightened emphasis on systemic discrimination should lead employers to consider that every charge has the potential for company-wide ramifications.  Thus, responses to discrimination charges should be drafted with this in mind.  For example, an employer’s volunteering statistical data in a position statement may tempt the EEOC to request additional information regarding any larger samples, even that for the entire workforce.  With advancements in technology, large data sets on workforces are readily available and easily producible.  The EEOC has taken advantage of this and will not hesitate to request data on classes of individuals to search for trends indicating potential discrimination.

    In the same vein, employers also should exercise caution when using such language as "pursuant to our consistently applied policy" when defending against allegations potentially applicable to groups of applicants or employees (e.g., such as those concerning pre-employment screening, employee testing requirements or triggers for automatic discipline).  This type of defense may open the door to a broad request for information regarding all employees affected by the same policy or procedure.

    What Can Employers Do Now?
    Employers should consider steps to protect their companies from allegations of system discrimination, including:

    • Ensure all employment policies and practices are job-related, contain sufficient flexibility to comply with the Americans with Disabilities Act and other prohibitions against discrimination, and do not adversely affect members of a protected class.
    • Conduct statistical analyses on the impact of employment policies and practices to find barriers to equal employment opportunities, and use outside counsel to ensure such analyses are protected by the attorney-client privilege.
    • Examine responses to individual charges of discrimination and avoid defenses that may result in heightened scrutiny of the impact of policies on large segments of the workforce.
    • Train managers to make decisions on an individualized basis and take the facts specific to the situation into consideration.
    • If you receive a request for information from the EEOC, consult experienced employment counsel who can assist in preventing the Agency from overreaching.