EEOC Thinking Big

Part One of this article discussed the EEOC's plans to implement its new Systemic Discrimination Initiative, describing what the initiative is, why it is important and the first two steps in the implementation: identifying systemic cases early and often, and involving lawyers from the start. The conclusion discusses the next four steps in the EEOC's plans, and what employers can expect.

Leveraging Data and Target Problem Areas

The EEOC Systemic Task Force described in Part One of this article emphasized that the EEOC should improve how it uses data, recommending that internal agency divisions do more to share and cooperatively process the information they gather. This means analyzing data with an emphasis on the 'big picture' from both national and regional perspectives, and includes analysis of EEO-1 data, nationwide charge data, and even results of investigations by other government agencies. The Task Force also calls for developing a technology infrastructure that supports a seamless nationwide systemic practice.

According to the Task Force, field staff armed with better, more comprehensive data can concentrate on likely investigation and litigation targets. In particular, each of the 15 EEOC geographic regions or 'districts' would develop its own Systemic Plan, covering the specific steps they would take to identify and investigate systemic discrimination. Districts were asked to focus on what they viewed as local problem areas of discrimination in certain industries or geographic areas. To develop these district-specific targets, the EEOC recommended that districts analyze employers or industries whose: 1) protected groups appear to be employed consistently below their availability; 2) protected groups are concentrated in lower-paying jobs or excluded from higher-paying jobs; 3) selection techniques are expected to impact protected groups adversely; and (somewhat strikingly) 4) areas where charge volume is lower than expected. This last 'trouble area' presumes that low charge volume is based in part on the 'closed' nature of an industry (for example, no claims of promotion discrimination because minority employees are being unlawfully excluded at the application stage).

The EEOC's districts submitted their plans last fall. While the agency will not make these plans public, EEOC Chair Naomi Earp has said the agency will identify the areas and employment sectors on which EEOC will focus for systemic cases, and plans to share these 'broad plans' once they have been established. Employers obviously await disclosure of these focus areas with great interest.

Incentives to Investigate and Litigate Systemic Cases

One potentially troubling Task Force directive: The EEOC is expected to create 'incentives' to encourage staff to implement the systemic strategy. The Task Force posits that internal performance evaluations could encourage staff to identify and process more systemic cases. Perhaps even more worrying, the Task Force recommends that the EEOC's award and incentive pay programs be linked to the Systemic Initiative. Nothing concrete has been shared with the public concerning what form these incentives would take.

'Follow a National Law Firm Model'

One of the Task Force's chief goals is to establish a national law firm model in executing its Systemic Initiative, focusing on partnering, mentoring and collaboration. The EEOC expects its districts to share and coordinate resources and cultivate a national practice. As part of its coordinated effort, the Task Force instructs that the EEOC should gauge the particular expertise needed in a case ' like case management, statistical analysis, relevant substantive law or knowledge of the particular industry at issue ' and deploy staff with the necessary knowledge and experience. This is a change from the EEOC's previous practice of relying mainly on the resources within a given district.

Developing Systemic Case Training

Although the Task Force emphasizes the need for coordination and pooling of resources, it also recognizes that training all EEOC staff is necessary to accomplish its goals. There are several ways EEOC plans to raise the general expertise in handling systemic cases. This includes:

• Partnering opportunities with other staff;
• Formal and informal training;
• Building relationships with other agencies and organizations;
• Forming an internal systemic web site with case development materials; and
• Creating tools like electronic bulletin boards to foster staff communication.

If the EEOC accomplishes these goals, employers can expect to see a more experienced, better trained EEOC staff investigating charges and ultimately litigating cases.

More Charges, Fewer Systemic Cases

The EEOC need not wait for an employee to bring a charge of discrimination to conduct an investigation. EEOC Commissioner charges and directed investigations can take the place of individual charge filing. The Task Force believes that these tools need to be a regular part of EEOC's systemic enforcement arsenal, and recommends streamlining the procedures for their approval.

Additionally, most employers are familiar with the EEOC's mediation program ' one the agency touts as an effective means for employers to dispose of cases early in the charge/litigation process. Indeed, many charges are automatically candidates for mediation. The agency considers some cases, however, strategically important enough that they are slated for full investigation (and, correspondingly, not candidates for mediation). The Task Force recommends that all cases involving systemic allegations be pulled from the EEOC's standard mediation track, directing that these cases should only be mediated with Regional Attorney approval.

What Can Employers Expect?

So how will the Systemic Initiative affect employers? Much of that depends on which of the Task Force goals are met, and to what degree. The EEOC will not complete its formal evaluation of the Systemic Initiative's success until 2010, but if the agency achieves the goals, employers can expect:

• More systemic-related charges (owing in part to more data, and in part to the new methods of 'eliciting' these claims);
• More investigations being initiated by the EEOC itself instead of individual charging parties;
• EEOC attorney involvement at an early stage in the charge process, with attorneys attending and even conducting portions of workplace investigations;
• Broader information requests during investigations and more aggressive follow-up concerning class-based allegations;
• A more aggressive use of EEOC subpoenas at the charge stage to gather information that, in the past, was not collected until a federal court case was filed (if at all);
• In areas or industries where systemic claims have traditionally been scarce, an uptick in class-based litigation;
• A higher-quality, more coordinated effort at all stages of systemic-related investigations and litigation; and
• Fewer opportunities to dispose of systemic cases through mediation.

Forewarned Is Forearmed

Employers should take the EEOC's Systemic Initiative seriously. As noted in Part One, employers in districts or industries that have traditionally avoided systemic scrutiny by the agency may face more class-based investigations and corresponding lawsuits. Importantly, employers in these sectors could be facing an EEOC far better equipped to advance these complex cases. According to the EEOC, prevention is still one of the best means of addressing its class-based focus. Employers' efforts to maintain effective non-discrimination and prohibited harassment policies, paired with robust training programs, are as important as ever. Perhaps more importantly, however, the agency's shift in tactics and focus suggests that employers should no longer treat early-stage charge investigations as routine.

Charges with class allegations, broad information requests, and more intense EEOC attorney involvement may signal large-scale EEOC litigation on the horizon. Employers are wise to stay alert for these tell-tale signs, and must be ready to devote the resources necessary to best shape their defenses much earlier than ever before.

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].

Part One of this article discussed the EEOC's plans to implement its new Systemic Discrimination Initiative, describing what the initiative is, why it is important and the first two steps in the implementation: identifying systemic cases early and often, and involving lawyers from the start. The conclusion discusses the next four steps in the EEOC's plans, and what employers can expect.

Leveraging Data and Target Problem Areas

The EEOC Systemic Task Force described in Part One of this article emphasized that the EEOC should improve how it uses data, recommending that internal agency divisions do more to share and cooperatively process the information they gather. This means analyzing data with an emphasis on the 'big picture' from both national and regional perspectives, and includes analysis of EEO-1 data, nationwide charge data, and even results of investigations by other government agencies. The Task Force also calls for developing a technology infrastructure that supports a seamless nationwide systemic practice.

According to the Task Force, field staff armed with better, more comprehensive data can concentrate on likely investigation and litigation targets. In particular, each of the 15 EEOC geographic regions or 'districts' would develop its own Systemic Plan, covering the specific steps they would take to identify and investigate systemic discrimination. Districts were asked to focus on what they viewed as local problem areas of discrimination in certain industries or geographic areas. To develop these district-specific targets, the EEOC recommended that districts analyze employers or industries whose: 1) protected groups appear to be employed consistently below their availability; 2) protected groups are concentrated in lower-paying jobs or excluded from higher-paying jobs; 3) selection techniques are expected to impact protected groups adversely; and (somewhat strikingly) 4) areas where charge volume is lower than expected. This last 'trouble area' presumes that low charge volume is based in part on the 'closed' nature of an industry (for example, no claims of promotion discrimination because minority employees are being unlawfully excluded at the application stage).

The EEOC's districts submitted their plans last fall. While the agency will not make these plans public, EEOC Chair Naomi Earp has said the agency will identify the areas and employment sectors on which EEOC will focus for systemic cases, and plans to share these 'broad plans' once they have been established. Employers obviously await disclosure of these focus areas with great interest.

Incentives to Investigate and Litigate Systemic Cases

One potentially troubling Task Force directive: The EEOC is expected to create 'incentives' to encourage staff to implement the systemic strategy. The Task Force posits that internal performance evaluations could encourage staff to identify and process more systemic cases. Perhaps even more worrying, the Task Force recommends that the EEOC's award and incentive pay programs be linked to the Systemic Initiative. Nothing concrete has been shared with the public concerning what form these incentives would take.

'Follow a National Law Firm Model'

One of the Task Force's chief goals is to establish a national law firm model in executing its Systemic Initiative, focusing on partnering, mentoring and collaboration. The EEOC expects its districts to share and coordinate resources and cultivate a national practice. As part of its coordinated effort, the Task Force instructs that the EEOC should gauge the particular expertise needed in a case ' like case management, statistical analysis, relevant substantive law or knowledge of the particular industry at issue ' and deploy staff with the necessary knowledge and experience. This is a change from the EEOC's previous practice of relying mainly on the resources within a given district.

Developing Systemic Case Training

Although the Task Force emphasizes the need for coordination and pooling of resources, it also recognizes that training all EEOC staff is necessary to accomplish its goals. There are several ways EEOC plans to raise the general expertise in handling systemic cases. This includes:

• Partnering opportunities with other staff;
• Formal and informal training;
• Building relationships with other agencies and organizations;
• Forming an internal systemic web site with case development materials; and
• Creating tools like electronic bulletin boards to foster staff communication.

If the EEOC accomplishes these goals, employers can expect to see a more experienced, better trained EEOC staff investigating charges and ultimately litigating cases.

More Charges, Fewer Systemic Cases

The EEOC need not wait for an employee to bring a charge of discrimination to conduct an investigation. EEOC Commissioner charges and directed investigations can take the place of individual charge filing. The Task Force believes that these tools need to be a regular part of EEOC's systemic enforcement arsenal, and recommends streamlining the procedures for their approval.

Additionally, most employers are familiar with the EEOC's mediation program ' one the agency touts as an effective means for employers to dispose of cases early in the charge/litigation process. Indeed, many charges are automatically candidates for mediation. The agency considers some cases, however, strategically important enough that they are slated for full investigation (and, correspondingly, not candidates for mediation). The Task Force recommends that all cases involving systemic allegations be pulled from the EEOC's standard mediation track, directing that these cases should only be mediated with Regional Attorney approval.

What Can Employers Expect?

So how will the Systemic Initiative affect employers? Much of that depends on which of the Task Force goals are met, and to what degree. The EEOC will not complete its formal evaluation of the Systemic Initiative's success until 2010, but if the agency achieves the goals, employers can expect:

• More systemic-related charges (owing in part to more data, and in part to the new methods of 'eliciting' these claims);
• More investigations being initiated by the EEOC itself instead of individual charging parties;
• EEOC attorney involvement at an early stage in the charge process, with attorneys attending and even conducting portions of workplace investigations;
• Broader information requests during investigations and more aggressive follow-up concerning class-based allegations;
• A more aggressive use of EEOC subpoenas at the charge stage to gather information that, in the past, was not collected until a federal court case was filed (if at all);
• In areas or industries where systemic claims have traditionally been scarce, an uptick in class-based litigation;
• A higher-quality, more coordinated effort at all stages of systemic-related investigations and litigation; and
• Fewer opportunities to dispose of systemic cases through mediation.

Forewarned Is Forearmed

Employers should take the EEOC's Systemic Initiative seriously. As noted in Part One, employers in districts or industries that have traditionally avoided systemic scrutiny by the agency may face more class-based investigations and corresponding lawsuits. Importantly, employers in these sectors could be facing an EEOC far better equipped to advance these complex cases. According to the EEOC, prevention is still one of the best means of addressing its class-based focus. Employers' efforts to maintain effective non-discrimination and prohibited harassment policies, paired with robust training programs, are as important as ever. Perhaps more importantly, however, the agency's shift in tactics and focus suggests that employers should no longer treat early-stage charge investigations as routine.

Charges with class allegations, broad information requests, and more intense EEOC attorney involvement may signal large-scale EEOC litigation on the horizon. Employers are wise to stay alert for these tell-tale signs, and must be ready to devote the resources necessary to best shape their defenses much earlier than ever before.

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].