The U.S. Equal Employment Opportunity Commission (EEOC) defines systemic discrimination as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” In 2005, the EEOC examined the state of its systemic discrimination program and issued numerous recommendations for changes in strategy, all of which resulted in the adoption of the Systemic Task Force (STF). The STF has been a game changer for EEOC enforcement, setting priorities that have shaped the EEOC’s agenda and strategic vision over the last decade. Among the STF’s primary recommendations was to make combating systemic discrimination a top priority. To do so, the STF advocated for the use of a national law firm model in litigating systemic cases by staffing systemic suits based on the needs of the suit, independent of the office where the case was developed.
Since adopting the STF’s proposed systemic initiative, the EEOC has continually increased the number of systemic cases pursued. By the end of 2013, the percentage of the EEOC’s docket aimed at systemic enforcement reached 23%. During this same time, the EEOC has repeatedly come under scrutiny from Courts for its failure to satisfy its requirements under Title VII to investigate and conciliate cases before filing far-reaching litigation against employers. This criticism has focused on allegations that the EEOC has repeatedly filed expensive systemic cases against employers without first offering the employer notice and a meaningful opportunity to try to resolve the matter. Even worse, at times the EEOC has filed systemic cases that simply lacked factual merit.
Recently, on July 7, 2016, the EEOC issued a report regarding its systemic program over the last decade. In this report, the EEOC claimed that it has made substantial progress in building a program that is strategic, nationwide, and supported across the agency. According to its July 7 report the EEOC:
- Now has the capacity to investigate and litigate systemic cases in every district.
- Has developed national strategies on specific priority issues that have enabled the agency to better identify the strongest cases.
- Has seen a 250% increase in systemic investigations over the past five years.
- Has tripled its success rates in systemic investigations at the conciliation stage, going from 21% in 2007 to 64% in 2015.
- Its systemic litigation program has had a 94% success rate over the last ten years. (*Notably, the EEOC does not define “success” in the report.)
- Tripled the amount of monetary relief recovered for victims in the past five fiscal years (2011 to 2015) compared to the first five years (2006-2010) after the STF was adopted.
The July 7 report reveals that the most common types of systemic lawsuits filed by the EEOC since 2011 are claims based on (1) retaliation; (2) sex; (3) race; and (4) disability. With respect to systemic cases settled at the conciliation stage, the report reveals that the most common types of cases settled then were: (1) disability; and (2) race. Finally, the July 7 report re-emphasizes the EEOC’s commitment to investigating and pursing systemic cases.
Employers should continue to pay careful attention to the EEOC’s systemic efforts. The EEOC is dedicating more and more resources to the STF that will enable it to target particular employers and industries. Among other initiatives, the EEOC is investing in technology that will enable EEOC personnel to access employer data regarding charges and investigations on a nationwide basis. So, larger employers that have locations in different geographic locations must communicate with each other about EEOC Charges — because the EEOC certainly will be looking at your EEOC Charges across your locations. More than anything, employers must understand that EEOC personnel at all levels will increasingly seek to identify potential systemic cases from individual EEOC Charges. Employers must keep their guard up and understand that a single EEOC Charge can potentially lead to far-reaching systemic discrimination litigation.