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Employers Face High Stakes
Any employer that has found itself before the EEOC understands the time, energy and cost that goes into defending against an individual employee's claims of unlawful discrimination or retaliation. In an individual disparate treatment case, an employer must be able to clearly and convincingly demonstrate the legitimate non-discriminatory reasons it relied upon to make the business decision that impacted that specific individual. Defending against a systemic discrimination charge, however, is significantly more involved and poses an exponentially greater potential for liability to a company. That is because systemic cases focus on a company-wide pattern or practice that has an adverse impact upon a protected class of individuals. For example, the EEOC has investigated (and resolved) pattern and practice cases involving discriminatory promotion and pay practices negatively impacting employees of Hispanic national origin, retirement programs that result in the selection of older workers, and implementation of layoffs that perpetuate an alleged “glass ceiling” adversely impacting women.
What Is the Current Political Landscape?
The EEOC's plan to identify and remedy systemic discrimination has been renewed with President Obama's commitment to eradicate discrimination from the workplace. In 2006, the EEOC introduced a Strategic Enforcement and Litigation Plan that focused on identifying, investigating and litigating systemic cases. In doing so the EEOC integrated employer EEO-1 reports with charge data to more readily identify potential systemic issues, provided specialized training on investigating and litigating systemic cases to field attorneys, and teamed investigators and attorneys together to identify systemic discrimination cases early on in the administrative process. By 2008, the EEOC's internal training efforts paid off in that the total number of systemic cases being investigated in that short two year window doubled.
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