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July 7 — The Equal Employment Opportunity Commission made “substantial progress” during the past decade to revitalize its efforts to address systemic discrimination that affects large groups of workers, EEOC Chair Jenny Yang (D) said in a new report.
“We've really transformed how we operate as an agency,” Yang told Bloomberg BNA in a July 6 interview.
Every EEOC field office now can handle systemic discrimination cases, and the agency shares its staff, legal expertise and other resources among those offices as it investigates, develops and litigates such cases, she said.
A “much more coordinated effort” and a “national law enforcement model” are realities, Yang said.
The EEOC implemented the principal recommendations by a 2006 agency task force that called for developing a more strategic, nationwide and coordinated program to identify, investigate and litigate systemic cases, the report said.
The EEOC defines systemic bias as that potentially resulting from employment practices or policies that have “a broad impact” on an industry, profession, company or geographic area.
• More than 71,000 workers received $532.8 million in relief in systemic investigations and lawsuits resolved in FY 2006 through FY 2015.
• EEOC achieved “favorable outcomes” in 192 of 205 systemic lawsuits resolved (94 percent) in FY 2007 through FY 2015.
• Settlement rate for systemic claims going to conciliation: 64 percent in FY 2015 compared with 21 percent in FY 2007.
• EEOC conducted 250 percent more systemic investigations in FY 2011 through FY 2015 than in FY 2006 through FY 2010.
• Systemic lawsuits on EEOC's active litigation docket: 22 percent in FY 2015.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
The 2006 task force report said the EEOC should develop the field offices' capacities, establish greater coordination among agency offices, set a national strategy for systemic enforcement and foster the culture of a national law firm.
The task force said that although the EEOC had “pockets” of systemic case enforcement, its efforts were uneven and even absent in some locales.
The new report, released July 7, assesses the reinvigorated systemic program's impacts so far and offers “transparency” about the EEOC's current plans, Yang said.
Yang began reviewing the EEOC's systemic program in November 2013 at the request of then-Chair Jacqueline Berrien (D). After receiving input from “a wide range of internal and external stakeholders,” Yang in August 2014 shared her preliminary findings with the agency's senior leadership, which also provided feedback.
Yang in September 2014 succeeded Berrien as the EEOC chair. Since then, the EEOC has taken additional steps to strengthen its systemic program, particularly regarding “infrastructure, coordination and training,” the report said.
“After a decade of investments in strengthening EEOC's nationwide systemic program, EEOC has a solid foundation to build upon as it continues its work to remove persistent and emerging barriers to opportunity,” the report said.
The numbers bear out that the systemic program has benefited large numbers of workers and helped root out some underlying causes of discrimination, Yang told Bloomberg BNA.
Cases alleging systemic discrimination now account for almost a quarter of the agency's active litigation docket, the report said.
But the most significant change may be to the agency's culture, as the EEOC strategically uses its resources to staff systemic cases with personnel from different district offices and uses technology to permit wider interoffice sharing of case files and other relevant data, Yang said.
The report said the EEOC now is focused on:
Potential emerging issues include employers' use of online selection tools and “big data” in screening job candidates and selecting applicants for hire, Yang said. The EEOC wants to ensure the algorithms used by employers are “job-related” and “consistent with business necessity,” she said.
An increase in temporary employment, now growing seven times as quickly as permanent employment, also is on the agency's radar, Yang said.
The EEOC finds that staffing agencies sometimes cater to their customers' preferences by referring only certain categories of workers for particular jobs, she said. The agency is looking at “job steering” as a practice that could broadly discriminate based on race, sex, disability or other protected characteristics, Yang said.
Barriers to hiring in the technology industry, which result in “significant under-representation” of some categories of workers, remains a topic of interest to the EEOC, she said.
The EEOC continues to invest in technology as a means to identify potential systemic issues; permit more information sharing and coordination among agency staff; and speed up investigations, enforcement and litigation, Yang said.
The EEOC's digital charge system, which currently allows employers responding to bias charges to communicate electronically with the agency, is slated to be extended to charging parties by the end of fiscal year 2016, she said.
The aim is to facilitate communications between EEOC personnel and the parties involved in discrimination matters while freeing EEOC investigators and other employees to spend more time on the merits of cases, Yang said.
The agency is exploring ways to permit more electronic sharing of case files and other documents among its staff, reducing the need for employee travel, she said.
The EEOC has designated lead systemic investigators and systemic coordinators in each district, and named a national systemic program manager based in Washington, the report said.
The agency will “augment its investments” in “staffing, infrastructure and technology” to support the systemic program, the report said.
The “infrastructure” refers to the designation and training of systemic program leads and increased coordination across the agency to share their experience and expertise, Yang said.
Systemic leads serve as mentors for other investigators who are new to systemic bias matters, she said. In June, the EEOC convened an advanced systemic institute in Washington at which the agency's “lead systemic folks” discussed “some of the key issues they're seeing,” Yang said.
Some Republican members of Congress and employer representatives have questioned the EEOC's emphasis on building systemic cases, citing an agency backlog that exceeded 76,000 pending charges at the end of fiscal 2015.
But echoing the EEOC's 2006 task force report, Yang said “combatting discrimination requires an effective systemic program.”
“By having a systemic lens, it's really about looking at the trends that we're seeing,” she said. “How can we address the root cause of that problem?”
“Ultimately, it's more efficient for us to address that underlying problem or practice than to respond each time we get an individual charge,” Yang said.
The EEOC has a 94 percent “favorable outcome” rate in systemic bias lawsuit resolutions from fiscal 2007 through fiscal 2015, the report said. The agency in fiscal 2015 also successfully settled 64 percent of the systemic cases that went to conciliation, tripling its 21 percent conciliation success rate in fiscal 2007, the report said.
Those numbers are related, as employers are more apt to settle when the EEOC is succeeding in its systemic bias litigation, Yang said.
The agency takes an integrated approach, meaning the systemic program is one tool among many that include education and outreach, she said.
“We view systemic work as an important part of the mission of the agency, which also includes investigating our individual charges and enforcing the law,” Yang said. “So it's really about a broader [perspective], about a set of tools that we have in order to address discrimination and prevent it.”
Yang added that by using the systemic tool when bias charges stem from a common practice, the EEOC focuses an employer's attention on the need for “concerted action” to address a broader problem.
“We can then get the employer invested in identifying those solutions where their interests are aligned with promoting equal opportunity, and that's something we really work to do across our program,” she said.
The EEOC's search for broader patterns in its charge data also can produce agency guidance that potentially has greater impact than resolving individual charges, Yang said.
The agency's recent resource document on leave as a reasonable accommodation under the Americans with Disabilities Act, for example, was developed after it received many ADA charges stemming from employers' use of inflexible leave policies, Yang said.
The increased use of commissioner charges since 2006 allows the EEOC to investigate potential systemic discrimination when no worker has filed a charge or when an individual charge investigation reveals a broader practice at issue, Yang said.
It's a way to notify employers that more than an individual complaint is involved and the agency is taking a more expansive look, she said.
Among the agency's next steps is “identifying what works” for employers to address their underlying problems that cause discrimination, she said.
The harassment task force, led by Commissioners Victoria Lipnic (R) and Chai Feldblum (D), recently made some recommendations along those lines that the EEOC potentially could use in its training and settlement proposals, Yang said.
That's “a critical focus” for the EEOC going forward, she said. The agency's research aims to illuminate “how do we know if we're really fixing the problem,” Yang said.
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Text of the report is available at http://src.bna.com/gAA.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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