The Equal Employment Opportunity Commission’s (EEOC) six-year-old systemic discrimination enforcement program is building steam, fueled by more aggressive investigative tactics and litigation strategies that are creating new challenges for employers.
In adopting its 2012-2016 strategic plan in February, the EEOC reiterated its emphasis on systemic cases. Instead of focusing on individual charges of discrimination, the agency is using such claims to launch broad investigations with the goal of uncovering similar cases that can be combined into pattern and practice lawsuits.
From the EEOC’s viewpoint, pursuing systemic cases leverages its limited resources to have the maximum impact on workplace discrimination at a time of tight federal budgets. In a press release announcing the strategic plan, the agency said it will develop a new strategic enforcement program to “stop and remedy unlawful employment discrimination” against large numbers of individuals or where the discrimination has a broad impact on an industry, profession, company or geographic area.
In the other recent pro-employer ruling, the 8th Circuit on Feb. 22 affirmed the dismissal of 67 individuals from a hostile work environment lawsuit in EEOC v. CRST Van Expedited Inc. The court said the EEOC failed to meet its statutory obligation to investigate claims of discrimination and engage in bona fide conciliation prior to bringing a lawsuit.
Specifically, during the conciliation process, the EEOC did not provide the employer with the names of the proposed class members or even a general indication of the size of the class. The 8th Circuit agreed that the EEOC’s litigation strategy was “untenable” because it forced CRST to litigate a “moving target” of allegedly aggrieved workers.