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Nov. 5 — The Equal Employment Opportunity Commission continues to emphasize cases involving alleged systemic litigation as the most strategic use of the agency's limited resources, EEOC Chair Jenny Yang said at an American Bar Association conference Nov. 5.
Nearly a decade after an EEOC task force in 2006 issued a seminal report reinvigorating the systemic program, Yang said the EEOC has been “transformed” with markedly more agency investigations and litigation aimed at employer policies and practices that operate on a company-wide, industry-wide or nationwide basis.
The EEOC currently is analyzing its fiscal year 2015 enforcement data for the annual performance and accountability report that will be issued later in November, Yang told the ABA Section of Labor and Employment Law in Philadelphia.
The preliminary results show the EEOC resolved more than 15,000 charges through administrative means in fiscal 2015 and that more than 250 of those charges settled without litigation were systemic cases, Yang said. More than 40 percent of EEOC cases are “multi-victim” cases, involving two or more affected individuals, and half of those cases are systemic, she said.
Many systemic cases involve alleged unlawful discrimination in hiring, Yang said. The EEOC plays a vital role in eradicating potential unlawful barriers to employment, as individual applicants often don't know why they have been turned down, and recent court decisions and employer agreements make pursuing private class actions more difficult, she said.
From an employer's perspective, the past two years have seen extremely high levels of enforcement activity, not only from the EEOC, but also from the Labor Department, the DOL's Office of Federal Contract Compliance Programs and the National Labor Relations Board, said Edward S. Schenk III, a management lawyer with Williams Mullen in Raleigh, N.C.
The EEOC's focus appears largely to be on cases involving barriers to employment or employer policies that might restrict individuals' access either to the courts or the agency, Schenk said. About 44 percent of the EEOC's charges in fiscal 2014 included a retaliation claim, he said. The EEOC's interest in bias charges seems to be “piqued” when there's a potential retaliation element, he said.
Employers' testing and selection methods, including background checks, physical abilities tests, and cognitive and personality screens, are “under the microscope” in the hiring context, Schenk said.
Surveys show about 80 percent of employers now are using online screens for hiring purposes, Yang said. Those tests can be beneficial because they provide some objective measures to assess applicants, rather than strictly subjective criteria, she said. But the EEOC's concern is that such tests “aren't really validated” for use in employment decisions, Yang said.
The EEOC is looking into how employers can take advantage of new technology but not in a way that screens people out of employment opportunities, Yang said.
Employers must be aware that many cognitive or personality tests used in their screening process weren't designed to determine if someone should be hired, Schenk said.
As a best practice, employers considering a personality, cognitive or physical skills test should determine why they are using it and what employment-related task they are trying to accomplish, Schenk said. Employers should “vet” the test and use only those that are validated for employment purposes or have been certified as legitimate by an independent source other than the test vendor, he said.
Employers' use of an outside vendor for a test that isn't validated or is shown to result in disparate adverse impact against a protected group doesn't shield the employer from liability under Title VII of the 1964 Civil Rights Act or other anti-discrimination laws, Schenk said.
In response to a question, Yang discussed the EEOC's successful resolution with Target Corp. in August of an agency charge regarding the retailer's hiring assessment tools under Title VII and the Americans with Disabilities Act (66 BTM 277, 9/1/15).
As part of the agreement settling the EEOC's concerns without litigation, Target agreed to enhance its employees' training and to improve its record-keeping regarding its use of tests in hiring, Yang said.
As more employers are relying on online screens and other tests, the EEOC wants to ensure those selection devices meet a business necessity standard, she said.
Along those lines, the EEOC's five members recently approved an agency research and data plan that was one of the follow-up steps mentioned in the EEOC's strategic plan issued in 2012 (64 BTM 5, 1/1/13), Yang said. The EEOC will collect some of the recent research regarding selection devices to “inform our approach” in assessing both the design and implementation of employers' tests, she said.
Regarding conciliation, Yang said the U.S. Supreme Court decision in Mach Mining LLC v. EEOC, 135 S. Ct. 1645, 126 FEP Cases 1521 (2015), in which the justices ruled the agency's pre-lawsuit settlement efforts are subject to only limited judicial review, will free up the agency and employers to focus on the merits of discrimination claims rather than engage in “satellite litigation” over the sufficiency of conciliation efforts (66 BTM 137, 5/5/15).
The EEOC's conciliation success rate has improved markedly over the past five years, Yang said. The agency settled 27 percent of the charges that went to conciliation in fiscal 2010, but that figure in fiscal 2015 has jumped to 44 percent based on the preliminary data for the year that ended Sept. 30, Yang said.
The EEOC's systemic program has been accompanied by the commission making broader requests for data from employers facing discrimination charges. Lawyers representing employers in such cases should establish a relationship with the EEOC investigator and/or regional attorney and get their “arms around” what data is being requested, whether such information even exists and if there may be alternative means to satisfy the agency that are less burdensome to the employer, Schenk said.
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