León Cosgrove

EEOC Issues Report on a Decade of Fighting Systemic Discrimination in the Workplace

By: León Cosgrove LLC

People working in the officeSince instituting a program to combat systemic discrimination in the workplace in 2006, the U.S. Equal Employment Opportunity Commission (EEOC) reported last week that the program has achieved significant success over the past decade. The commission defined its success as a significant increase in the number of such matters investigated annually since 2011, and a dramatic increase in the number of cases resolved through conciliation without proceeding to litigation.

The EEOC defines “systemic discrimination” as an employer’s discriminatory pattern, practice or policy that has a broad impact on an industry, profession, company, or geographic location. Thus, by definition, systemic discrimination has a larger footprint than an alleged discriminatory practice affecting a single employee or a small group of plaintiffs.

In combating such alleged forms of widespread discrimination, the EEOC’s Systemic Task Force provides recommendations to the Commission and works to sharpen its national approach in the investigation, litigation and enforcement in systemic cases.

Investigations Up 250 Percent

In a statement about the systemic program’s success, EEOC Chair Jenny R. Yang explained that “EEOC has transformed its systemic program in the past decade by investing in staff, training, and technology to build systemic expertise in every EEOC district.” The result of the commission’s work is a 250 percent increase in systemic investigations in the past five years. Moreover, the EEOC noted in last week’s report that the conciliation success rate of systemic cases has tripled from 21 percent to 64 percent, yielding the commission a 94 percent success rate in systemic discrimination lawsuits.

“As a direct result of EEOC systemic investigations and lawsuits over the past decade, more than 70,000 workers have received jobs, wages, and benefits, and many more have benefited from positive changes in workplace practices,” Ms. Yang said.

Nevertheless, the report acknowledges that there are still barriers to eradicating systemic discrimination, including procedural challenges to class certification in class action lawsuit and employers’ mandatory arbitration policies. From the EEOC’s perspective, mandatory arbitration policies protect employers from public scrutiny with their private arbiters, weaken incentives to comply with the law, and prevent employees from learning about similar conduct toward co-workers, among other harmful effects. Further, the class certification standard set by Dukes v. Wal-Mart Stores, Inc. makes it more difficult for employees to form a certifiable class to defend themselves under federal statutes.

EEOC as the Alternative to Arbitration Clauses, Dukes Ruling

Nevertheless, the EEOC pointed out that it is not hampered by the same obstacles faced by employees seeking legal redress. That’s because the commission has the authority to “bring litigation regardless of arbitration bans on class actions and can seek relief for all employees affected by an employer’s discriminatory practices under a different standard than the procedural requirements for certification of private class actions.”

In fact, legal hurdles faced by employees have only intensified the EEOC’s focus on systemic workplace discrimination and spurred more aggressive investigation of broad-based employment discrimination cases. And in its report, the commission states that moving forward, the EEOC will focus on three key areas to defend against systemic discrimination: “1). executing national strategies to address persistent and emerging systemic issues; 2). advancing solutions that promote lasting opportunity in the workplace; and 3). strengthening the agency’s technology and infrastructure.”

 

JohnBosco_BW_WebJohn Bosco is a partner in the Dallas, Texas, office of León Cosgrove, LLC who focuses his practice on the defense and trial of complex labor and employment and accessibility matters in federal and state courts across the country.