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By: Ben Mathis
Over the last few years, in both formal policy statements and in many public presentations, the EEOC has emphasized that it’s investigative and litigation focus is on cases involving “systemic discrimination.” In other words, the EEOC has focused on cases where there are “widespread” or “institutional” discriminatory practices. Most often, the EEOC has been very aggressive in cases concerning facially neutral policies which it believes have a discriminatory effect on minorities and individuals in protected classes or in cases where statistical evidence shows that the outcome in hiring or termination cases suggests a practice and pattern of discriminatory decisions. In this regard, the EEOC’s recent interpretive guidance regarding the use of background checks in hiring, released last April, is a concrete example of its efforts to address common employer practices which the EEOC contends lead to a “systemic” discriminatory hiring practice.
The EEOC now has taken another significant step toward implementing its systemic initiative with release of a new “Draft Strategic Enforcement Plan.” The SEP reemphasizes that the EEOC’s “number one” priority will be on systemic recruiting and hiring discrimination. The SEP notes that the EEOC believes it is better positioned to bring claims alleging systemic discrimination than private attorneys because of the EEOC’s access to data and documents regarding hiring and recruiting throughout the country. The EEOC says that it will be taking particular interest in common hiring and recruiting tools such as pre-employment tests, background screens and date of birth screens in online applications.
This renewed emphasis on systemic hiring, and the EEOC’s clear directive that it will devote significant resources to the effort, is clearly a reaction to last year’s Supreme Court decision of Wal-Mart v. Dukes, which ruled that class action bars in arbitration agreements may be enforceable. Many employers following Dukes have instituted arbitration provisions which require all employees to forego civil lawsuits and bring any claims, including class claims, in arbitration instead of court. Thus, the SEP recognizes that the Plaintiff’s attorney bar may well lessen, or in many instances, abandon systemic class claims because they may be subject to a class action bar.
The practical effect of the SEP is that employers can expect to see even more requests from the EEOC for additional information that focus on overall hiring and termination practices. These requests often include statistical information that seems far broader than might be expected in a single employee case and are being seen in many cases where a charging party does not even make such a “class” allegation. In addition, the EEOC expressly has stated that it will begin opening nationwide investigations, with offices from Georgia and the southeast cooperating with other offices in an effort to identify what it believes is systemic discrimination. There is little doubt that the EEOC will continue to increase its “company-wide” investigations.
The SEP also provides for new and additional areas of focus of the EEOC in the coming years, including protecting immigrant and migrant workers in disparate pay, segregation and discriminatory practice claims, and “emerging issues” including ADA issues and coverage of lesbians, gays, bisexuals and transgender individuals under Title VII’s sex discrimination provisions. The EEOC also will increase focus on pregnancy related issues, including refusing accommodations to pregnant women that may be offered to other employees.
Overall, the SEP provides a road map for what employers can expect in the near future with respect to both investigation and litigation. The SEP also likely will result in even bigger changes on the local level for your area EEOC office, because it directs all district offices to develop their own plans by March 31, 2013, identifying their own enforcement priorities. Charges that fall within the national and district plans will then be given “priority” and will be investigated with more emphasis and resources.