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  Systemic Enforcement at the EEOC

                      
                        

          
          
                        Systemic Enforcement at the EEOC
              


          
  As part of its enforcement, the EEOC uses administrative and litigation mechanisms to identify and pursue discriminatory policies and practices that the EEOC identifies as “systemic”. In order to understand this strategy, it is important to know:

What is meant by the term “systemic”?
	How and why did the EEOC determine that systemic enforcement was an effective way to combat discrimination?
	How is a systemic case initiated and then how does it proceed?
	What types of policies and practices potentially involve systemic issues?
	What kind of success has the EEOC had with systemic enforcement?
	Is the Office of General Counsel pursuing these types of cases?This information provides additional transparency about EEOC’s systemic program by providing answers to these and similar questions.

What is “Systemic?”

The EEOC defines systemic cases as “pattern or practice, policy and/or class cases where the discrimination has a broad impact on an industry, profession, company or geographic location.”*Systemic Task Force Report to the Chair of the Equal Employment Opportunity Commission*, (hereinafter "*Task Force Report*"), at 1.  “Systemic” has also been defined to mean “bias that is built into systems, originating in the way work is organized” and “refers to structures that shape the work environment or employment prospects differently for different types or workers.” “Systemic” also refers to “... patterns of behavior that develop within organizations that disadvantage certain employees and become harmful to productivity.”  The purpose behind pursuing systemic enforcement is to dismantle the pattern, practice or policy that results in or facilitates decisions that are discriminatory. While systemic discrimination can affect significant numbers of employees or applicants, it can also impact small numbers as well.  *Advancing Opportunity a Review of the Systemic Program of the U.S. Equal Employment Opportunity Commission*(hereinafter “*2016 Report*”), at 7, citing: Pauline T. Kim, *Addressing Systemic Discrimination: Public Enforcement and the Role of the* EEOC, 95 BOSTON UNIV. L. REV. 1133, 1136- 1139 (2015); H.R. Rep. No. 92-238 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2149-50; David Weil, Improving Workplace Conditions through Strategic Enforcement, A Report to the Wage and Hour Division at 11 (May 2010).

The Systemic Task Force

In 2005, the EEOC established the Systemic Task Force (“Task Force”) to evaluate how the EEOC addressed systemic discrimination.  In March of 2006, the Task Force presented its Systemic Task Force Report (“Task Force Report”) to the Commission. *Task Force Report*, at 1.

The Task Force Report concluded that the EEOC could not effectively combat discrimination without an effective nationwide systemic program, and that the EEOC was uniquely equipped to combat systemic discrimination for several reasons:

When Title VII of the Civil Rights Act was passed, Congress authorized the EEOC to investigate charges of discrimination, which included class-wide discrimination;
	Congress authorized EEOC Commissioners to issue charges on their own, in the form of a Commissioners Charge;
	The EEOC’s authority expanded in 1972 when Congress amended Title VII and gave the EEOC the authority to file suit;
	Congress transferred the authority to bring “pattern or practice” cases under Section 707 against non-public entities from the Department of Justice to the EEOC;
	With the additional authority to enforce the American’s with Disabilities Act, the Equal Pay Act and the Age Discrimination in Employment Act, Congress was signaling that with that additional authority came additional responsibility with respect to systemic cases;
	Because of access to data, as well as the ability to use Commissioner Charges and Directed Investigations[1], the EEOC is in a unique position to identify systemic cases;
	The EEOC does not have to satisfy the requirements for a class action under Rule 23 of the Federal Rules of Civil Procedure;
	The EEOC can bring cases focused on injunctive relief which might not be attractive to private litigants; and
	Its nationwide presence allows the EEOC to act as a nationwide law firm.*Task Force Report*, at 1, 2 and 57.

Perhaps one of the most significant changes that resulted from the Task Force was the shift from systemic cases being investigated and litigated in “pockets” across the agency and in dedicated units in headquarters to a decision that the EEOC should have the capacity to address systemic discrimination in all field offices with headquarters taking a supporting  role for the field systemic programs. *Task Force Report*, at 6; *2016 Report*, at 1.  To facilitate that fundamental change, the Task Force Report contained 100 recommendations, which centered around a nation-wide approach to identifying and investigating systemic issues.  *2016 Report*, at 1. The Task Force Report recommended that: collaboration between  offices (field and headquarters) should be encouraged; district offices should develop systemic plans; data should be more effectively used and shared; expanding individual charge investigations into potential systemic cases should be encouraged where appropriate; and the use of Commissioner Charges and Directed Investigations to pursue systemic cases should be encouraged where appropriate. *Task Force Report*, at 11-16. The Task Force Report also recommended that the EEOC should ensure there is sufficient staff in each district office and provide for support of such staff by the regional attorneys, as well as from headquarters staff in the Office of Field Programs, the Office of General Counsel and the Office of Research, Information and Planning (the  data and research arm of the EEOC, now called the Office of Enterprise Data and Analytics), resulting in enhanced systemic expertise amongst staff. *Task Force Report*, at 22, 25, 57-60.

Following the adoption of the recommendations of the Task Force in 2006, the Commission implemented its recommendations. The Commission created the role of Systemic Coordinator and Lead Systemic Investigator; required that enforcement and legal collaborate closely on systemic investigations;  required district directors and regional attorneys to consult before issuing cause determinations on systemic cases;  encouraged intake staff to conduct interviews not only to obtain information as to the particular charge, but also to evaluate the information provided by the Charging Party and determine whether systemic allegations should be included in the charge; and  recommended that Commissioner Charges and Directed Investigations can be used for investigating potential systemic cases. **

Continued Support for Systemic Enforcement in the Years Following the Task Force Report

In December 2012, the EEOC, in its Strategic Enforcement Plan for FY 2013-2016 (*U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2013 - 2016**,* , “2013-2016 SEP”), rededicated itself to the goals set out by the Task Force and the Task Force Report: that systemic enforcement be nationwide, coordinated, adequately resourced, and that the agency support systemic enforcement.  The 2013-2016 SEP also added that the program be strategic and strive to have the most impact by focusing on national and local priority issues adopted by the EEOC. *2016 Report* at 13, 23. Similarly, the 2017-2021 Strategic Enforcement Plan reaffirmed the EEOC’s commitment to a nationwide, strategic and coordinated systemic program.

By 2016, the EEOC concluded that it had implemented the key recommendations of the Task Force Report, now having the capacity to investigate and litigate systemic cases in every district, based on developed national strategies on specific priority issues. *2016 Report*, at 3,4. Lead systemic investigators, systemic coordinators, and the National Systemic Program Manager meet regularly to coordinate investigations, explore strategies, and share information. *Id.*, at 14. Commissioner Charges and Directed Investigations are often utilized by the EEOC to investigate and evaluate a full spectrum of potential discrimination that be broader than what may have been raised in an individual charge. *Id.*, at 21.

The EEOC maintains and analyzes data regarding its systemic program.  Data is available for FY 2019 through FY 2022.

What vehicles are available to the EEOC to pursue a systemic investigation?

An individual charge.  While investigating an individual charge, the EEOC may obtain evidence that indicates potential systemic issues.
	A Commissioner Charge under Title VII of the Civil Rights Act, the Americans with Disabilities Act or the Genetic Information Non-Discrimination Act.  A Commissioner may issue a Commissioner Charge based on the recommendation of a field office or on the Commissioner’s own initiative.
	A Directed Investigation under the Age Discrimination in Employment Act or the Equal Pay Act.*2016 Report*, at 21.

What are examples of the types of practices and policies that may involve systemic discrimination?

**Hiring/Promotion/Assignment/Referral**

	Criminal/credit background checks
		Recruitment practices such as favoring or limited to word-of mouth
		Tap-on- the- shoulder promotion policies
		Steering of applicants to certain jobs or assignments based on race or gender
		Historically segregated occupations or industries
		Job ads showing preference (“young”, “energetic”, “recent graduate”, “men only”, “women only”)
		Customer preference
		Big data- using algorithm to sort through applications
		Personality or customer service tests; physical ability or capacity tests; cognitive tests
		No rehire of retired workers or hiring of currently employed persons only
	**Policies/Practices**
	Mandatory religious practices by employers who do not qualify as religious organizations
		Paternal leave policies that do not give the same benefits for men and women
		Mandatory maternity leave
		Fetal protection policies
		English only rules
		Age-based limits on benefits or contributions to pension or other benefits
	**Lay-off/Reduction in Force/Discharge policies**
	Mandatory retirement
		Layoffs, reorganizations, and RIFs- disparate treatment and disparate impact based on a protected characteristic
		Waivers that may prevent employees from filing complaints or assisting the EEOC
		Waivers that do not comply with the Older Workers Benefit Protection Act
	**ADA/GINA**
	“No fault” attendance policies
		Non-accommodation for medical leave
		Light duty policies for only work-related injuries
		100% healed return to work requirements
		Pre-employment medical inquiriesWho at the EEOC identifies “systemic” discrimination?

EEOC investigators and others involved in charge processing, including lead investigators, systemic coordinators, supervisors and attorneys, may identify a case as a potential systemic investigation.

Who designates when investigations are “systemic”?

District office management usually designates investigations as systemic through consultation between the District Director and Regional Attorney or other Systemic-designated and legal staff.

Once a case is designated “systemic” is it ever undesignated?

If at some time the evidence as developed indicates that continuing a systemic investigation is no longer warranted, the District would process the charge accordingly. Similarly, when warranted, the District narrows the investigation from its original scope.

*Task Force Report,*at 7.

Are Charging Parties or Respondent/Employers advised that a particular charge or case has been designated “systemic”?

Employers are notified if an investigation is looking into whether there are other aggrieved individuals in addition to the Charging Party (this information may be on the face of the charge), but the term “systemic” is an internal designation that helps guide an investigation and is not routinely shared with the parties. However, a Notice of Proposed Rule Making was published on October 9, 2020, that would update the Commission’s conciliation procedures (29 CFR Part 1601 and 29 CFR Part 1626) and include a requirement that during conciliation a respondent be advised  if the case at issue has been determined to be systemic. https://www.federalregister.gov/d/2021-00701

Who determines how a systemic investigation proceeds?

How a Commissioners Charge or Directed Investigation proceeds is determined by the District Director, who has significant discretion and autonomy as to the scope and limitations of the case. Similarly, the District Director determines how systemic investigations of charges filed by individual Charging Parties will proceed in coordination with the legal department.

Once an investigation is designated as “systemic”, what is the role of headquarters and the field?

The case is investigated and litigated in the field.  As with all investigative work, headquarters supports the field systemic program through technical guidance, analysis, assistance and support.  Lead systemic investigators, systemic coordinators, and the National Systemic Program Manager meet regularly to coordinate investigations, share information and coordinate strategies.

*Task Force Report,*at 6; *2016 Report,*at 14.

What additional resources are available to investigate systemic cases?

EEOC staff utilize interviews, onsite investigations, responses to requests for information, position statements and the review of relevant documents, just like any other investigation.  In addition to the resources generally used to investigate all charges, EEOC staff use an array of resources:

EEOC’s Office of Enterprise Data and Analytics (OEDA) is the Commission’s principal statistical office.  OEDA researches, collects, and analyzes relevant data and information; reviews and analyzes organizational activities; and recommends approaches and procedures to improve operations by ensuring data-driven decision-making.
	EEOC’s Integrated Mission System (IMS) is an important resource.  EEOC staff use IMS to access information regarding private sector charges of discrimination, which includes the charging party’s name, address, and demographics; respondent company address and profile information; particulars about the details of the charge; and activities related to charge processing.
	Annual EEO-1 Reports which are compliance surveys mandated by federal statute and regulations that require covered companies to provide employment data categorized by race/ethnicity, gender, and job category.*Task Force Report*, at 9-12; *2016 Report*, at 16.

What are some examples where the EEOC been successful in systemic enforcement?

Use of background checks
	Denying women jobs in fields such as truck drivers, dockworkers, laborers
	Refusal to hire African American, Hispanics and older workers for front of the house positions
	Ending staffing agency use of referring applicants based on customer preferences
	Widespread sexual harassment of teenagers in fast food chains
	Racially hostile displays such as nooses and racist graffiti
	Eliminating tap on the shoulder recruiting in favor of job posting
	Challenging policies of issuing attendance points for medical related absences, without accounting for disabilities
	Challenges of deportation made against employees complaining of discrimination
	Challenges to abuse of vulnerable workers who were subject to years of confinement, abuse, deplorable conditions, and reduced pay following charges of discrimination*2016 Report*, at 24-30

Is the Office of General Counsel litigating systemic cases?

In FY  2021, OGC filed 116 merits lawsuits, 13 of which were systemic suits (11%).
	At the end of FY 2021, 29 cases on EEOC’s active litigation docket were systemic suits, accounting for 16% of the 180 active merit suits
	In FY 2021, OGC resolved 26 systemic lawsuits, recovering over $22.7 million for 1,671 individuals.More information is available in the EEOC Office of General Counsel Annual Reports and the EEOC Annual Reports.

[1] Congress authorized the EEOC to investigate possible discrimination under Title VII, the ADA, and GINA using Commissioner Charges. Similarly, Congress authorized the EEOC to investigate possible age discrimination under the ADEA and potential pay discrimination under the EPA through a direct investigation.  No charge is required to launch a directed investigation.  Although a Commissioner may initiate a directed investigation, District Directors may initiate a directed investigation without approval from any Commissioner.  EEOC field offices can issue subpoenas in a directed investigation which are not subject to review through a motion to modify or revoke a subpoena. *See*Commissioner Charges and Directed Investigations.
      
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