EEOC Casting a Bigger Net to Catch Systemic Discrimination

Commissioner Stuart Ishimaru of the U.S. Equal Employment Opportunity Commission issued a stern warning to American businesses when he spoke at the Employment Practices and Fiduciary Liability Symposium sponsored by the Professional Liability Underwriting Society. He cautioned that the EEOC is shifting its focus from small individual cases to larger systemic issues, even some that will cut across entire industries. He added that the change in emphasis was the result of limited resources that were stretched too thin to fight all potential employment discrimination cases.

Commissioner Ishimaru also noted that the agency needed to choose its targets more carefully, especially in litigation. In order for the EEOC to change attitudes and deter bad behavior in employment practices, targets must be bigger than they’ve been in the past. To that end, the agency has adopted recommendations from an internal task force report that focuses on strengthening its nationwide approach to investigating and litigating systemic cases.

The task force was established in 2005 to examine the EEOC’s systemic program and recommend new strategies for handling this type of employment discrimination. The task force worked for nearly a year, conducting interviews, holding focus groups, and polling EEOC staff. One of the outcomes of their work was a specific definition of systemic cases as a “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location.”

Another outcome was a plan to revitalize the agency’s systemic program by having district offices analyze data to spot problems within their regions’ industries.Most employers are required to file an EEO-1 report that breaks down race, gender and ethnic composition of employees. These EEO-1 statistics will be used to uncover problem employers and industries. In addition, members of the EEOC Commission and employees involved in outreach will be encouraged to educate employers and other members of the public about systemic discrimination, including trends and issues the agency has identified and cases the agency has handled.

Commissioner Ishimaru also hinted at the possibility of the EEOC using testers either directly or indirectly in enforcement. Testers are job applicants with similar resumes but different races or ethnic backgrounds that apply for the same jobs.

In addition to those changes described above, the Commission also approved some other significant operational changes:

  • Systemic investigations and litigation will be conducted in the field, and the systemic investigation and litigation units in headquarters will no longer exist.
  • Each district in the field must develop a plan that will ensure the Commission is identifying and investigating systemic discrimination in a coordinated and effective manner throughout the agency.
  • The Office of General Counsel should staff systemic cases using a national law firm model, meaning that cases will be staffed with employees who have the expertise suited to each particular case.

The most significant change in this overall shift in focus is the decentralization of the agency. Field offices are expected to handle all systemic investigations and litigation. They will be partnering to share expertise, in order to maximize resources. Headquarters will now assume a secondary role as a provider of assistance and support for the field offices’ systemic program.