One year after an internal task force called for the EEOC to shift its focus from individual cases to systemic discrimination, the agency is arming for a major new initiative designed to maximize the impact of its attacks on workplace discrimination.

The task force report bluntly criticized the EEOC's recent performance. Field offices devote too much time to investigating and prosecuting cases affecting just one individual, the report said, while overlooking systemic discrimination–pattern or practice cases broadly affecting employees throughout a company or industry.

Despite a few high visibility cases–such as the $48.9 million pregnancy discrimination settlement with Verizon Communications Inc. in June 2006–the agency's initiatives against systemic discrimination had nearly evaporated.

“No one was looking for patterns of discrimination,” says EEOC Vice Chair Leslie Silverman, who headed the task force. “There was remarkably little cooperation between field offices. While we had an office that was devoted to systemic discrimination, it was virtually dormant in recent years, bringing no cases.”

To effect workplace change, Silverman says, the agency needed to get “more bang for the buck,” focusing its limited resources on cases with widespread impact. With the endorsement of a unanimous commission vote on April 4, 2006, the agency is now implementing the task force recommendations. Field offices now have the tools and incentives to look beyond cases that walk in the door and proactively seek out companies or industries with a history of systemic discrimination.

Employment attorneys argue that the types of companies the EEOC seeks–where discrimination is ingrained in employment practices–are few and far between. But they warn employers not to take the new initiative lightly.

“This is the time to look at your employment practices,” says Gil Abramson, partner in Hogan & Hartson. “It's a catalyst, just like an accident is a catalyst to look at workplace safety.”

Changes Underway

But the time for employer self-scrutiny is running short. The EEOC headquarters has approved the plans the regional offices submitted, detailing approaches to attacking systemic discrimination. Each field office has appointed a systemic coordinator. The agency is posting sample documents and best practice information from field offices on its Intranet site to assist the staff in conducting systemic investigations.

With the enthusiastic support of new EEOC General Counsel Ron Cooper, who joined the agency in August 2006 after 34 years at Steptoe & Johnson, the agency is reorganizing along a “national law firm model.” Instead of staffing a systemic case from the office where it originates, the agency will mobilize attorneys and paralegals with specialized experience from throughout the country.

“Many large defense firms are starting to operate this way, and we need to take a lesson from their playbook,” Silverman says.

Turning around any government agency is a formidable task, and the EEOC is no exception. Silverman acknowledges that the technology infrastructure and specialized staffing additions the task force recommended to facilitate investigations are still works in progress. She estimates it will be a year to 18 months before the EEOC files any new systemic discrimination cases. But that shouldn't lull employers into complacency.

Silverman says that EEOC field offices are reaching out to the plaintiffs' bar, community organizations and state and local civil rights offices in their efforts to uncover systemic discrimination. They also will analyze the annual EEO-1 reports, on which all companies with 100 employees or more report employment data by race or ethnic origin, gender and job categories, to see if patterns of discrimination emerge.

“This commitment is not just words on paper,” Silverman says. “The district offices are now at the identification or initial investigation stage. These are big cases; big cases take big investigations, and big investigations take a long time.”

Retailers Beware

While she declined to identify industries or particular types of discrimination

in the crosshairs of EEOC investigators, Silverman pointed to the Abercrombie & Fitch Stores case as an example of what they are seeking. The retailer settled for $50 million in November 2004 after the EEOC investigated allegations that the company denied employment and promotion opportunities to women and minorities to enhance the company's “classic, all-American” marketing image.

Other retailers, as well as airlines, are likely to be in the EEOC's sights too, according to Joshua Davis, partner in Goulston & Storrs. In both industries, he says, companies are relatively high profile, have high turnover rates and may put an emphasis on the physical appearance of their employees.

“The law says you cannot make employment decisions because you want your workforce to look a particular way,” he says.

Financial services firms and restaurant chains also are likely targets for different reasons.

“Anecdotally, the brokerage industry is reputed to have a glass ceiling, and restaurants are reputed to have issues with harassment of young kids and race discrimination,” Abramson says.

Renewed Vigilance

Although the airline, brokerage, restaurant and retail industries are especially vulnerable to EEOC scrutiny, the agency has said it will probe for systemic discrimination in any company where an individual files a claim. As a result, employers should take a close look at their policies on recruiting, hiring, training and retaliation prevention and rethink both how they prevent discrimination and how they respond when a charge is made.

“Be careful of the process of responding to a discrimination charge because a single charge could mushroom into a systemic discrimination case,” says Allison Marshall, partner in Jones Day.

Employers also need to seek out hidden causes of discrimination. For example, one practice Silverman cited as an indicator of systemic discrimination is relying on word-of-mouth referrals from existing employees to fill vacancies. People tend to refer other people like themselves, and hiring managers tend to hire people like themselves, leading to a homogeneous workforce.

Finding such root causes of discrimination may require a concerted effort. Employment attorneys recommend a thorough audit of employment practices–recruiting and hiring, compensation and promotion, termination and benefits–as well as continuing training for managers and employees.

“The bottom line is that the roots of discrimination are deep and somewhat invisible,” Davis says. “Often employers have to defend in court a practice that they should have seen but didn't because it is hidden in the corner. You have to take out a magnifying glass and look for those things.”