The Equal Employment Opportunity Commission’s (EEOC) investigation and litigation tactics have been a hot topic lately, as the agency recently announced its plan to target more employers in bigger, more costly systemic discrimination suits. As the EEOC has intensified efforts to get more bang for its litigation buck, some courts have questioned whether the agency has strayed from its statutory duty to engage in good-faith efforts to remedy discrimination without resorting to litigation.

EEOC Systemic Discrimination Cases Get Top Priority

The EEOC recently unleashed its four-year plan to bolster efforts against systemic discrimination. With limited resources available in the current economy, the plan is designed to maximize agency resources by focusing on widespread patterns or practices of discrimination rather than on individual cases. For those who have been tracking the EEOC’s efforts over the past few years, which have seen dramatic increases in systemic filings, the recent announcement should come as no surprise.  

Under the new plan, the agency will set a baseline number of systemic cases that must be maintained in the litigation docket. That number will increase by a certain percentage each year until 2016. Under this new quota system, the EEOC will have to prioritize systemic cases when choosing which cases to litigate. That means that employers will face much higher levels of exposure when they come under the scrutiny of the EEOC. Investigators will be looking for reasons to turn individual cases into systemic cases, which have an exposure-level more akin to that of a class action lawsuit.

Unlike class actions, however, the EEOC does not need to go through the rigorous class action certification process in order to file a systemic discrimination case. In fact, the agency does not even have to wait for a single complaint to be filed. By filing a commissioner’s charge, the EEOC can initiate an investigation based upon its own suspicions of discrimination under Title VII and the Americans with Disabilities Act (ADA). Furthermore, if the agency wants to investigate potential violations of the Age Discrimination in Employment Act or the Equal Pay Act, field directors can initiate a directed investigation without even obtaining a commissioner’s charge.

EEOC Efforts to Combat Disability Discrimination

So what types of cases are attracting the EEOC’s attention? Over the last year, the agency has demonstrated increased interest in cases alleging violations of the ADA. Monetary relief awarded for ADA cases increased by almost 36 percent last year, for a total of $103.4 million.

The agency has been targeting particular types of employment practices that discriminate against disabled employees. For example, employers should be wary of utilizing one-size-fits-all attendance policies and medical questionnaires that are unrelated to the job. Due to recent changes in the ADA regulations, employers should make sure that their policies are up to date and that they are engaging in a meaningful interactive process with disabled employees who request reasonable accommodations, including requests for additional leave.

Courts Will Not Let the EEOC’s Compliance with Statutory Duties Fall by the Wayside

There is some good news for employers. In its haste to take on ambitious systemic cases, the EEOC has lost some embarrassing cases due to its failure to follow its own procedures. In May, the Eighth Circuit Court of Appeals upheld the dismissal of 67 claims brought on behalf of female drivers for CRST Van Expedited, Inc., concluding that the EEOC had failed to reasonably investigate and conciliate the drivers’ claims prior to filing suit. The court emphasized the importance of the multi-step enforcement procedure created by the Equal Employment Opportunity Act, which requires the EEOC, as a precondition to suit, to investigate a charge for reasonable cause and then attempt to remedy the violation through the informal, nonjudicial means of conference, conciliation, and persuasion.  

The Eighth Circuit chided the EEOC for “wholly abandon[ing] its statutory duties” and using the discovery phase of litigation to do fact-gathering that it should have done earlier. During the investigation phase of the charge, the agency did not conduct any investigation into the 67 drivers’ allegations, did not issue a reasonable cause finding, and did not attempt to conciliate with any of the 67 drivers. Furthermore, the agency refused the employer’s repeated requests to disclose the size of the class and the names of the prospective employees involved. The court held that this was proper grounds for dismissal of the claims.

In the wake of the CRST decision, a federal district court in Colorado denied an attempt by the EEOC to expand its list of aggrieved persons through discovery, holding that “the federal lawsuit discovery process should not be the means by which the EEOC uncovers additional violations.” Similarly, the U.S. District Court for the Eastern District of Washington recently held that the EEOC acted unreasonably in conciliation by failing to provide sufficient information to an employer about the scope of the investigation and by abruptly terminating the conciliation process without explanation. In that case, however, the court determined that dismissal would not be in the best interest of the individual claimants, and therefore the court ordered a stay of the lawsuit to allow for more meaningful conciliation. 

Other courts, however, have questioned the breadth of the CRST holding, concluding that the EEOC is not required to individually investigate the claims of unidentified class members prior to filing suit. The Seventh Circuit Court of Appeals has taken the position that it will not review EEOC investigations for adequacy. Nevertheless, faced with a motion challenging the EEOC’s failure to investigate and conciliate, the court granted a stay of 14 days so that the parties could attempt conciliation of the class members’ claims.

Advice for Employers

Although some cases have disagreed with the scope of the EEOC’s duty to investigate, it is clear that the agency cannot actively conceal the names of identified claimants and the scope of its investigation from an employer. Therefore, employers facing an EEOC investigation or conciliation should ask the EEOC to explain the nature and scope of its class theory and identify all known class members.