In unanimous votes at an early April meeting, the Equal Employment Opportunity Commission directed the agency it oversees to increase its investigation and litigation of cases nationwide in which a pattern, practice or policy of alleged discrimination has a broad impact on an industry, profession, company or geographic location.
"We’re fundamentally changing the way we do our work," says Cari Dominguez, EEOC chairwoman. Although the new initiative requires hiring additional professional staff, the agency has not estimated its cost.
EEOC field offices must formulate plans for a coordinated effort on systemic discrimination, utilizing EEOC expertise from across the country instead of relying exclusively on the field office in the region where a charge is made. Under such an approach, the agency intends to act more like a national law firm.
The agency also seeks to improve internal sharing of statistics used to identify systemic discrimination. For instance, the EEOC wants to link employer data to census information and improve access to research on national and regional economic trends.
"What we’re trying to do is change the culture so that (EEOC) employees will recognize systemic discrimination," says Commissioner Leslie Silverman, who directed a one-year task force on systemic discrimination.
The EEOC is flexing its muscles to assert its relevance, according to an attorney who defends corporations. "They’re trying to show they’re going to be a viable agency going into the next century," says Jonathan Greenbaum, an attorney with Nixon Peabody.
The change in focus may result in the EEOC filing more systemic discrimination cases but fewer cases overall, allowing the agency to "more strategically and effectively accomplish its mission," says Mary Jo O’Neill, regional attorney in the EEOC’s Phoenix office. "We will be getting more benefits for victims and will have more impact based on the ripple effect of the lawsuits."
Individual plaintiffs won’t necessarily be denied an avenue for justice because they will continue to hire private attorneys and they can turn to state equal employment offices.
A defense lawyer estimates that the EEOC might pursue 150 to 200 cases annually under the new directive, rather than the current 250 to 400. But it will try to make a bigger splash with each one, like it did when it settled a $54 million sexual discrimination case against Morgan Stanley in 2004.
"By being selective in who it sues and what it sues them for, it sets an example for the entire industry," says Gerald Maatman Jr., senior partner at Seyfarth and Shaw.
Policies that can result in systemic discrimination include requiring employees to be 100 percent recovered from an illness or injury before returning to work, denying them absences during their first year of employment and refusing to hire workers convicted of a felony. Companies "really should look at their written policies and do self audits," O’Neill says.
Industries most likely to be vulnerable to systemic discrimination include those that tend to recruit and hire minority workers, such as hotels, food service establishments, cleaning companies and construction businesses. The cost of compliance also could increase. Insurance providers may be unwilling to write an employer liability insurance policy for a company whose industry has been identified by the EEOC as having a systemic problem with discrimination, attorney Greenbaum says.