EEOC's New Focus on Systemic Discrimination Litigation
Congress requires executive departments, governmental corporations, and independent agencies to develop and post a strategic plan on their public websites every five years. These plans are supposed to direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets, and related program performance information. Earlier this year, the United States Equal Employment Opportunity Commission (EEOC) released its Strategic Plan for 2012-2016.
EEOC listed increasing the number of systemic discrimination lawsuits against employers as a top priority. Systemic litigation involves an allegation of a pattern or practice of discrimination or class discrimination. Stated in other words, a case of systemic discrimination involves wrongful conduct that impacts a group of individuals as opposed to a single individual. It may involve, for example, a preference for younger workers in the hiring process, a glass ceiling preventing women from advancing within an organization, or a sick time policy that results in a failure to accommodate individuals with disabilities. By pursuing this strategy, EEOC seems to be saying that it is seeking more bang from its litigation buck.
Employers need to be aware that EEOC will likely seek to enlarge the scope of some otherwise single-complaint investigations where the facts that it discovers may support an allegation that systemic discrimination is occurring. This is particularly the case where an employer’s rule or policy has broad company-wide impact upon more employees than simply the individual who brought the initial charge.