The U.S. Equal Employment Opportunity Commission has made eliminating so-called “discriminatory” barriers in recruitment and hiring one of its top priorities. For practical purposes, this means the agency is targeting and scrutinizing the recruitment and hiring practices of all employers. 

As a result, issues with EEOC enforcement litigation remain at or near the top of corporate counsel’s radar screen. The financial stakes are typically high, corporate reputations are on the line, and problems with media attention can divert critical corporate resources. 

Often, I hear corporate counsel bemoan that defending an EEOC systemic investigation or pattern or practice lawsuit is akin to “holding a tiger by the tail…” This type of litigation can be tough, but sound defense strategies can turn the tables and secure successful outcomes.

Today I had the privilege of discussing these issues in a keynote address at theAmerican Staffing Association’s Legal Symposium with over 650 corporate counsel.

Substantial Q & A focused on the defense victories earlier in 2014 in the two biggest and most-high profile EEOC lawsuits in the country – in EEOC v. Sterling(discussed here) and EEOC v. Kaplan (discussed here and here). The rulings in these cases have generated significant criticism of the EEOC’s systemic litigation program – with the Wall Street Journal calling the Sixth Circuit’s decision in EEOC v. Kaplan the “Opinion of the Year” (here and here).

But given the Commission’s current agenda, hiring and recruitment practices remain vulnerable to enhanced scrutiny.

Sound HR compliance programs, strong defense strategies, and practical litigation decisions are key to eliminating and/or minimizing these exposures.