With a requested $18 million budget increase for 2011, the EEOC's focus on systemic discrimination cases will likely continue for years to come, putting increased pressure on employers to proactively address potential company-wide barriers to equal employment opportunity. The EEOC, the government agency responsible for enforcing federal anti-discrimination laws, already received a $23 million funding increase in its FY 2010 budget to step up enforcement efforts, including enforcement related to systemic discrimination.
Defined by the EEOC as "a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area," some examples of systemic discrimination, according to the agency, include: "discriminatory barriers in recruitment and hiring; discriminatorily restricted access to management trainee programs and to high level jobs; exclusion of qualified women from traditionally male dominated fields of work; disability discrimination such as unlawful pre-employment inquiries; age discrimination in reductions in force and retirement benefits; and compliance with customer preferences that result in discriminatory placement or assignments."
Unlike private parties, the EEOC is not required to meet the stringent requirements of Rule 23 of the Federal Rules of Civil Procedure to maintain a class action. Therefore, systemic discrimination litigation initiated by the EEOC can expose employers to very significant liability without the procedural safeguards typical of class action litigation. Since September 2009, the EEOC has reported several settlements for amounts ranging from $4.5 million to $19 million. These cases have involved allegations of gender discrimination, race, color and national origin discrimination, age discrimination and disability discrimination.
To make matters worse for employers, in some cases, the EEOC decides on its own to investigate whether a company is engaging in systemic discrimination outside of what is alleged in a particular charge. A federal appeals court in New York recently held that the EEOC had authority to request company-wide information regarding an employer's religious exemptions to company policy after two individual employees filed religious discrimination charges. EEOC v. UPS, 587 F.3d 136 (2d Cir. Nov. 19, 2009).
In this new era of aggressive EEOC enforcement, employers may be well-served by proactive assessment and resolution of their potential vulnerabilities, with particular attention on human resources administrative processes, pay and promotion differentials, training opportunities, and workplace attitudes, behaviors, and conditions that could lead to discrimination, harassment and hostile work environment claims.
Vincent A. Cino is a partner in the Morristown, N.J., office of Jackson Lewis LLP. He is the firm's National Director of Litigation.