On January 8, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) unveiled a new page on its website titled “Systemic Enforcement at the EEOC.”  This page explains that the EEOC will make use of its administrative and litigation tools to identify and pursue systemic discriminatory practices of employers.

The EEOC defines “systemic” in its Systemic Task Force Report to the Chair of the Equal Employment Opportunity Commission as “a pattern or practice, policy and/or class cases where the discrimination has a broad impact on an industry, profession, company or geographic location.”

The EEOC additionally defines “systemic” as a “bias that is built into systems, originating in the way work is organized,” and “patterns of behavior that develop within organizations that disadvantage certain employees and become harmful to productivity.”  The EEOC’s purpose behind identifying and investigating systemic issues is to end patterns, practices, or policies that result in or facilitate decisions that are discriminatory. The EEOC will not only investigate systemic discrimination by employers with large numbers of employees, but also small employers.

The EEOC has identified types of policies that it may look at as potential examples of policies that could result in systemic discrimination:

  • Hiring/Promotion/Assignment/Referral
    • Criminal/credit background checks
    • Recruitment practices such as favoring or limited to word-of mouth
    • Tap-on- the- shoulder promotion policies
    • Steering of applicants to certain jobs or assignments based on race or gender
    • Historically segregated occupations or industries
    • Job ads showing preference (“young”, “energetic”, “recent graduate”, “men only”, “women only”)
    • Customer preference
    • Big data- using algorithm to sort through applications
    • Personality or customer service tests; physical ability or capacity tests; cognitive tests
    • No rehire of retired workers or hiring of currently employed persons only
  • Policies/Practices
    • Mandatory religious practices by employers who do not qualify as religious organizations
    • Paternal leave policies that do not give the same benefits for men and women
    • Mandatory maternity leave
    • Fetal protection policies
    • English only rules
    • Age-based limits on benefits or contributions to pension or other benefits
  • Lay-off/Reduction in Force/Discharge policies
    • Mandatory religious practices by employers who do not qualify as religious organizations
    • Paternal leave policies that do not give the same benefits for men and women
    • Mandatory maternity leave
    • Fetal protection policies
    • English only rules
    • Age-based limits on benefits or contributions to pension or other benefits
  • ADA/GINA
    • Mandatory religious practices by employers who do not qualify as religious organizations
    • Paternal leave policies that do not give the same benefits for men and women
    • Mandatory maternity leave
    • Fetal protection policies
    • English only rules
    • Age-based limits on benefits or contributions to pension or other benefits

The EEOC will identify systemic issues based on investigations of individual charges; commission charges under Title VII of the Civil Rights Act; the Americans with Disabilities Act (“ADA”); the Genetic Information Non-Discrimination Act (“GINA”); the Age Discrimination in Employment Act (“ADEA”); and the Equal Pay Act.  Additionally, a Commissioner Charge may be issued based on the recommendation of a field office or on a Commissioner’s own initiative.  Investigations are performed by systemic coordinators, supervisors, and attorneys, all of whom the EEOC indicates will be able to identify a potentially systemic case.  After the identification of potential systemic discrimination, a case may be designated systemic by district office management through consultation between the District Director and Regional Attorney or other systemic designated and legal staff.  While employers are notified of EEOC investigations, employers may not be directly notified if a systemic investigation is underway, which is why it is important to involve legal counsel as soon as possible when an employer is being investigated by the EEOC.

In fiscal year 2020, the Office of General Counsel filed 93 merits suits, 13 of which were systemic lawsuits (13.9%).  Additionally, there were 41 cases on the EEOC’s active litigation docket that were systemic suits, which accounted for 20.3% of the 201 active merit suits in 2020.  Finally, the Office of General Counsel resolved 33 systemic cases in 2020, recovering $69.9 million for approximately 25,000 individuals.  As such it is advisable that employers are proactive and audit their policies for any of the above identified policies, or any related issues, before they become a problem.  Such policy reviews can be done in house by human resources or a legal team, however, law firms that specialize in employment law, like Surdyk, Dowd & Turner Co., L.P.A, can assist in reviewing your policies and making recommendations to help employers avoid running afoul of the EEOC’s regulations and costly lawsuits and settlements.

Leave a Reply

Your email address will not be published.