The EEOC has taken several hits in recent systemic discrimination cases. For instance, in EEOC v. Peoplemark, Inc., the EEOC was ordered to pay $750,000 in attorneys' fees in a systemic case alleging that the company had a blanket policy of rejecting applicants with criminal histories. After six years of investigation and litigation, the court found that 22 percent of the 286 applicants supposedly not hired by Peoplemark had, in fact, been hired. Finding that the EEOC's claims "were without foundation from the very beginning," a federal judge in the Western District of Michigan ordered the agency to pay attorneys' fees to Peoplemark. A great victory for the company, but $750,000 probably didn't begin to compensate it for the time and manpower spent in defending a case for six years.

In EEOC v. CRST Van Expedited, Inc., another systemic sex discrimination case, the EEOC was ordered to pay $4.5 million in attorneys' fees and expenses. A federal judge in the Northern District of Iowa found that the EEOC did not conduct a reasonable investigation, did not engage in good-faith conciliation efforts, and did not have a basis for bringing the claim. The U.S. Court of Appeals for the Eighth Circuit (Arkansas, the Dakotas, Iowa, Minnesota, Missouri, and Nebraska) has since reversed summary judgment on a handful of the claims and therefore vacated the award of attorneys' fees without prejudice because the company was no longer the prevailing party. "Without prejudice" means that the court can revisit the attorneys' fees issue when the case is completely concluded. In any event, the impact of the decision remains.

Still, the EEOC will not be dissuaded from pursuing systemic discrimination cases. In fact, the EEOC has unleashed a four-year plan that calls for increased pursuit of systemic cases and maximization of its resources to pursue those cases. The new plan requires the EEOC to maintain a baseline number of systemic cases that must be maintained in the litigation docket, and that number must increase by a certain percentage each year until 2016. With its new plan, the EEOC will give priority to its systemic cases when choosing cases to litigate. As a result, we anticipate that investigators will be looking for any opportunity to transform a single charge into "systemic" case.