A Definition and a Warning about Discrimination.


The EEOC is hunting for discrimination and they are loaded for bear.

I bet you did not know that the EEOC has filed fewer cases this year than last. There have been 122 cases files in 2012, 67 in just the last eight weeks of their fiscal year. The year before there had been 261 cases in fiscal with 167 of those filed in the last eight weeks. So why the drop? A couple of reasons, first the EEOC got “spanked” in several of their cases and they lost and got fined for not thoroughly investigating and trying to find “victims” during the investigation process. Secondly they have changed their emphasis away from “systemic discrimination” cases. My question was, what exactly is systemic discrimination? So here is the definition and a warning about how the EEOC is handling discrimination cases.
The Definition
According to the EEOC systemic discrimination is:
Systemic discrimination involves a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.
Examples of systemic discrimination include:

    • Discriminatory barriers in recruitment and hiring;
    • Discriminatorily restricted access to management trainee programs and to high level jobs;
    • Exclusion of qualified women from traditionally male dominated fields of work; disability discrimination such as unlawful pre-employment inquiries;
    • Age discrimination in reductions in force and retirement benefits; and
    • Compliance with customer preferences that result in discriminatory placement or assignments.

The cases involved with systemic discrimination were typically larger company involving many employees. As I mentioned above the EEOC has been and will be working on fewer of these cases. In the coming year they will be working on making them stick with a heavier emphasis on investigation, a lot of intensive investigation.
The Warning
The EEOC has basically thrown down the gauntlet. With the changes they have made it appears, according to Seyfarth Shaw attorney Gerald Maatman Jr., employers need to be concentrating on removing discrimination from their hiring practices. These include:

    • Recruiting processes
    • Screening processes
    • Employment tests
    • Training of people involved in hiring
    • The improper use of background checks, in particular blanket exclusions for people convicted of crimes.

This last bullet means that all those “convicted of a felony” exclusions must be removed. The conviction will have to be related to the job the individual is applying for.
So get out your magnifying glass and take a very close look at what you are doing. If anything smacks at all of discrimination then you had better do some revising. The EEOC is tired of losing and the next time they knock on your door they are coming “loaded for bear.” Don’t say you haven’t been warned.
Hat tip to: Allen Smith, J.D., manager, workplace law content, for SHRM

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