The EEOC Is Thinking Big

Since its creation in 1965, the Equal Employment Opportunity Commission ('EEOC') has been charged with eliminating workplace discrimination. The EEOC receives and investigates employee discrimination complaints ranging from simple single-employee termination disputes to complex, multi-facility allegations of systemic discrimination. Not surprisingly, few employers have avoided at least some contact with this agency.

Like most government agencies, however, the EEOC faces significant obstacles. Its budget is rigorously scrutinized each year. Staffing is down and the backlog of individual discrimination charges is up. Concerned members of Congress have petitioned key House appropriators for funding increases to boost the organization's frontline staffing. In light of all of this, newly appointed EEOC chair Naomi Earp has her work cut out for her. As Earp succinctly stated, '[o]ur challenge in 2007 is to make the most effective and efficient use of agency resources.' In other words, the EEOC must get more bang for its buck to remain effective. Enter the agency's new Systemic Discrimination Initiative. This two-part article discusses how EEOC plans to implement the Initiative.

What Is the Systematic Discrimination Initiative?

The EEOC considers itself 'uniquely equipped' to combat widespread, systemic workplace discrimination. The agency also believes that focusing on systemic discrimination is critical to its chartered purpose, and allows it to utilize its limited resources best. Thus, in 2005, then-chair Cari Dominguez established the EEOC Systemic Task Force. The Task Force was charged with examining the EEOC's programs, and recommending new strategies for combating systemic discrimination. The Task Force's efforts culminated in a report issued last spring outlining its plan for handling systemic cases ' a plan the agency has called its Systemic Initiative. The report, along with other recent EEOC memoranda, gives employers a unique look at the EEOC's class-case 'playbook' and provides a preview of its prospective tactics.

Generally speaking, the Systemic Initiative calls for the EEOC to uncover, investigate and successfully litigate more cases of widespread employment discrimination. The Initiative lays out a coordinated national plan for bringing all of the agency's resources to bear on targeted practices, industries and even specific groups of employers. So why should employers care about the Systemic Initiative, especially those who have not confronted broad allegations in the past? Because employers are sure to face more of these class and class-like EEOC cases under the Initiative, particularly if they are in business sectors or regions previously untouched by large-scale matters. Further, if the agency achieves the Task Force's goals, it will be far better equipped to wage these complex, multi-claimant actions than it ever has been in the past. Through this Initiative, the EEOC is trying to operate less like a typical government agency, and more like a lean, efficient, and expertly-staffed private plaintiff's law firm.

How It Will Work

The Task Force highlights three stages critical to combating systemic discrimination: identifying systemic discrimination, investigating systemic charges, and litigating systemic cases. The Task Force evaluated each of these stages, and made specific recommendations for improvement. These recommendations provide valuable insight into the EEOC's 'thought processes.' They include:

• Identifying systemic cases early and often; and
• Involving staff at all levels in the Initiative.

As EEOC Vice Chair Leslie Silverman put it, the EEOC must be 'firmly resolved to promoting a culture at all levels of the agency that supports the identification, investigation and litigation (when necessary) of systemic cases.' The Task Force also stressed that the agency must identify systemic cases earlier. EEOC General Counsel Ronald Cooper has signaled that while EEOC plans to 'ramp-up' systemic litigation, early emphasis will be on the investigation and administration stages.

What It Means to Employers

Employers may find the EEOC's methods of identifying systemic issues troubling. For example, most charging parties do not approach the EEOC intending to make class-wide allegations of unlawful conduct. Yet the agency intends to probe individual charging parties carefully for any signs of systemic discrimination. The EEOC has told its staff:

Charging parties may not see the issues broadly enough to realize that a class of individuals could have been affected ' Structured interview questions may be helpful in eliciting such information.

Naturally, employers may be concerned about the sort of questions asked of its employees to 'elicit' class-based allegations, especially when employees did not originally contact EEOC with these widespread concerns.

Moreover, where employees do allege class-wide discrimination, the EEOC plans to pursue those claims, regardless of their apparent merit. In the past, agency staff made some preliminary evaluations as to whether an employee had truly raised class-wide concerns. Rightfully so, employees sometimes see systemic discrimination where none exists, but the EEOC has now instructed its staff that early judgment calls should be limited, explaining: 'When a charging party asserts class allegations, even though not readily apparent to the investigator, the class charges should be included.'

According to the EEOC's systemic strategy, then, an individual complaint of discrimination may suddenly mushroom into facility- or even company-wide investigation even where the employee did not intend to bring a class-based charge, and even if systemic discrimination is not apparent to EEOC investigators.

Lawyers Will Be Involved from the Start

EEOC lawyers will also become more involved in the administrative process. In the past, agency lawyers played a limited role at the charge level. Non-lawyer intake personnel and staff investigators typically collected information and analyzed a charging party's claims. This will change under the EEOC's systemic strategy. It has outlined for its district directors and regional attorneys several steps they should take to coordinate the efforts of its investigative and legal staff, including:

• Assigning a team of at least one investigator and one attorney to each systemic case;
• Requiring attorneys to be closely involved with all phases of developing systemic cases, including the intake interview;
• Recommending that enforcement and legal staff consult on all aspects of the investigation and development of the case; and
• Where appropriate, directing attorneys and investigators to participate jointly in on-site investigations.

Conclusion

This represents an important change in strategy. The EEOC administrative process was intended to be a neutral investigation of discrimination claims, but now, the lawyers who will ultimately litigate claims of systemic discrimination as employee advocates will be closely married to some or all aspects of the investigation.

Next month's conclusion of this article will discuss the next four steps in the EEOC's plans and what employers can expect. At press time, Lilly Ledbetter said at a press conference that she planned to testify before Congress mid-June in a bid to change a law that the U.S. Supreme Court used to deny her claim.

Christopher DeGroff is a partner in Seyfarth Shaw LLP's Chicago office, practicing class-based labor and employment law as part of the firm's Complex Discrimination Litigation group. He can be contacted at [email protected].

Since its creation in 1965, the Equal Employment Opportunity Commission ('EEOC') has been charged with eliminating workplace discrimination. The EEOC receives and investigates employee discrimination complaints ranging from simple single-employee termination disputes to complex, multi-facility allegations of systemic discrimination. Not surprisingly, few employers have avoided at least some contact with this agency.

Like most government agencies, however, the EEOC faces significant obstacles. Its budget is rigorously scrutinized each year. Staffing is down and the backlog of individual discrimination charges is up. Concerned members of Congress have petitioned key House appropriators for funding increases to boost the organization's frontline staffing. In light of all of this, newly appointed EEOC chair Naomi Earp has her work cut out for her. As Earp succinctly stated, '[o]ur challenge in 2007 is to make the most effective and efficient use of agency resources.' In other words, the EEOC must get more bang for its buck to remain effective. Enter the agency's new Systemic Discrimination Initiative. This two-part article discusses how EEOC plans to implement the Initiative.

What Is the Systematic Discrimination Initiative?

The EEOC considers itself 'uniquely equipped' to combat widespread, systemic workplace discrimination. The agency also believes that focusing on systemic discrimination is critical to its chartered purpose, and allows it to utilize its limited resources best. Thus, in 2005, then-chair Cari Dominguez established the EEOC Systemic Task Force. The Task Force was charged with examining the EEOC's programs, and recommending new strategies for combating systemic discrimination. The Task Force's efforts culminated in a report issued last spring outlining its plan for handling systemic cases ' a plan the agency has called its Systemic Initiative. The report, along with other recent EEOC memoranda, gives employers a unique look at the EEOC's class-case 'playbook' and provides a preview of its prospective tactics.

Generally speaking, the Systemic Initiative calls for the EEOC to uncover, investigate and successfully litigate more cases of widespread employment discrimination. The Initiative lays out a coordinated national plan for bringing all of the agency's resources to bear on targeted practices, industries and even specific groups of employers. So why should employers care about the Systemic Initiative, especially those who have not confronted broad allegations in the past? Because employers are sure to face more of these class and class-like EEOC cases under the Initiative, particularly if they are in business sectors or regions previously untouched by large-scale matters. Further, if the agency achieves the Task Force's goals, it will be far better equipped to wage these complex, multi-claimant actions than it ever has been in the past. Through this Initiative, the EEOC is trying to operate less like a typical government agency, and more like a lean, efficient, and expertly-staffed private plaintiff's law firm.

How It Will Work

The Task Force highlights three stages critical to combating systemic discrimination: identifying systemic discrimination, investigating systemic charges, and litigating systemic cases. The Task Force evaluated each of these stages, and made specific recommendations for improvement. These recommendations provide valuable insight into the EEOC's 'thought processes.' They include:

• Identifying systemic cases early and often; and
• Involving staff at all levels in the Initiative.

As EEOC Vice Chair Leslie Silverman put it, the EEOC must be 'firmly resolved to promoting a culture at all levels of the agency that supports the identification, investigation and litigation (when necessary) of systemic cases.' The Task Force also stressed that the agency must identify systemic cases earlier. EEOC General Counsel Ronald Cooper has signaled that while EEOC plans to 'ramp-up' systemic litigation, early emphasis will be on the investigation and administration stages.

What It Means to Employers

Employers may find the EEOC's methods of identifying systemic issues troubling. For example, most charging parties do not approach the EEOC intending to make class-wide allegations of unlawful conduct. Yet the agency intends to probe individual charging parties carefully for any signs of systemic discrimination. The EEOC has told its staff:

Charging parties may not see the issues broadly enough to realize that a class of individuals could have been affected ' Structured interview questions may be helpful in eliciting such information.

Naturally, employers may be concerned about the sort of questions asked of its employees to 'elicit' class-based allegations, especially when employees did not originally contact EEOC with these widespread concerns.

Moreover, where employees do allege class-wide discrimination, the EEOC plans to pursue those claims, regardless of their apparent merit. In the past, agency staff made some preliminary evaluations as to whether an employee had truly raised class-wide concerns. Rightfully so, employees sometimes see systemic discrimination where none exists, but the EEOC has now instructed its staff that early judgment calls should be limited, explaining: 'When a charging party asserts class allegations, even though not readily apparent to the investigator, the class charges should be included.'

According to the EEOC's systemic strategy, then, an individual complaint of discrimination may suddenly mushroom into facility- or even company-wide investigation even where the employee did not intend to bring a class-based charge, and even if systemic discrimination is not apparent to EEOC investigators.

Lawyers Will Be Involved from the Start

EEOC lawyers will also become more involved in the administrative process. In the past, agency lawyers played a limited role at the charge level. Non-lawyer intake personnel and staff investigators typically collected information and analyzed a charging party's claims. This will change under the EEOC's systemic strategy. It has outlined for its district directors and regional attorneys several steps they should take to coordinate the efforts of its investigative and legal staff, including:

• Assigning a team of at least one investigator and one attorney to each systemic case;
• Requiring attorneys to be closely involved with all phases of developing systemic cases, including the intake interview;
• Recommending that enforcement and legal staff consult on all aspects of the investigation and development of the case; and
• Where appropriate, directing attorneys and investigators to participate jointly in on-site investigations.

Conclusion

This represents an important change in strategy. The EEOC administrative process was intended to be a neutral investigation of discrimination claims, but now, the lawyers who will ultimately litigate claims of systemic discrimination as employee advocates will be closely married to some or all aspects of the investigation.

Next month's conclusion of this article will discuss the next four steps in the EEOC's plans and what employers can expect. At press time, Lilly Ledbetter said at a press conference that she planned to testify before Congress mid-June in a bid to change a law that the U.S. Supreme Court used to deny her claim.

Christopher DeGroff is a partner in Seyfarth Shaw LLP's Chicago office, practicing class-based labor and employment law as part of the firm's Complex Discrimination Litigation group. He can be contacted at [email protected].