On February 22, 2012, a split U.S. Court of Appeals for the 8th Circuit in EEOC v. CRST Van Expedited, Inc.held that the EEOC must satisfy its investigation and good faith conciliation requirements under Title VII for each purported class member before bringing suit to maintain a Section 706 class action, as opposed to a pattern or practice action.  The EEOC strongly disagrees with this approach because it will place significant burdens on the EEOC’s investigators to develop class-wide evidence to bring a class action.  Practically, this may mean that the EEOC will continue to pursue on-site investigations to develop class action type evidence and subpoena broader information that most employers are willing to voluntarily (without a subpoena) provide in response to a single complainant EEOC charge.

A similar issue is pending before the Sixth Circuit in EEOC v. Cintas Corp. in which the EEOC is appealing the district court's granting of summary judgment.  Cintas successfully defeated the EEOC's claims asserting, like the defendant in CRT, that the EEOC failed to exhaust administrative remdies on behalf of the named plaintiffs. This CRT decision will places more stringent requirements on the EEOC to investigate something that might hinder its systemic discrimination initiatives. 

The EEOC also implemented its new strategic plan for 2012 through 2016 in February.  The plan identifies stopping and remedying unlawful employment discrimination as its core mission.  It further set strategic objectives of combating discrimination through strategic enforcement and education and outreach.  In 2011, the EEOC filed 23 lawsuits alleging systemic discrimination, with each case involving 20 or more individuals.  Those cases are 14% of the EEOC’s litigation docket.  To date, the EEOC has had the most success in obtaining settlements based on allegations that employer’s attendance policies failed to accommodate disabled employees.  The most recent settlement was against Verizon in which the EEOC and Verizon settled for $20 million.

The EEOC continues to aggressively pursue systemic discrimination in the workplace.  What remains to be determined is how much work courts will make them put into these matters before the reach litigation.