A REVIEW OF THE EEOC’S SYSTEMIC INITIATIVE:
Tracking its Progress, Current Priorities,
and Key Developments in FY 2016
by Barry Hartstein,
Co-Chair, EEO & Diversity Practice
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A REVIEW OF THE EEOC’S SYSTEMIC INITIATIVE
Setting the Stage
The EEOC’s FY 2016 PAR underscores that the
agency has “continued to focus on those activities
likely to have strategic impact in advancing equal
employment opportunity in the workplace.”1 In order
to maximize its impact, the EEOC has been focusing
on systemic discrimination.2
The EEOC’s recent report on A Review of the
Systemic Program of the U.S. Equal Employment
Opportunity Commission (“2016 Systemic Report” or
“Report”), as published by the EEOC in July 2016,3
underscores the EEOC’s view that the “Commission
cannot eectively combat discrimination without a
strong nationwide systemic program,” and reviews
the progress of the EEOC’s systemic initiative since
issuance of the EEOC’s Systemic Task Force Report
in April 2006.4
An important cornerstone of this initiative has
been the Commission’s 2012 Strategic Plan and
related Strategic Enforcement Plan (“SEP”), which
“rearmed the agency’s commitment to the goals
set forth by the Systemic Task Force.”5 As many
readers are aware, the SEP “identified six national
priority areas to focus the agency’s work, identifying
key areas for systemic enforcement to increase the
impact of the agency’s eorts across the country.”6
On October 17, 2016, the EEOC announced adoption
of its SEP for 2017-2021, which slightly modifies
the initial SEP, but generally continues the same six
priorities initially announced in its 2013-2016 SEP.7
On November 16, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued its annual
Performance and Accountability Report (“FY 2016 PAR”), which highlights key EEOC developments
over the past fiscal year, ending September 30, 2016, including review of the EEOC’s current priorities
and systemic initiative. On July 7, 2016, the EEOC also published “A Review of the Systemic Program
of the U.S. Equal Employment Opportunity Commission,” looking back over the past decade. Based on
these publications, the EEOC has been far more transparent than ever in shedding greater light on its
systemic initiative.
This article reviews key aspects of these recent reports and highlights key developments over the
past year as the agency continues to devote a significant amount of its limited resources to “systemic
discrimination,” which it defines as “pattern-or-practice, policy and/or class cases where the alleged
discrimination has a broad impact on an industry, profession, company, or geographic location.”
A comprehensive review of key EEOC statistics, regulatory developments and litigation initiated by the
EEOC will be discussed in Littler’s upcoming Annual Report on EEOC Developments: Fiscal Year 2016,
which will be published in early 2017.
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A REVIEW OF THE EEOC’S SYSTEMIC INITIATIVE
The following are the EEOC’s current priorities:
1. Eliminating Barriers in Recruitment and Hiring.
EEOC will focus on class-based recruitment and
hiring practices that discriminate against racial,
ethnic, and religious groups, older workers,
women, and people with disabilities. These include
exclusionary policies and practices, the channeling/
steering of individuals into specific jobs due to their
status in a particular group, job segregation, restrictive
application processes (including online systems
that are inaccessible to individuals with disabilities),
and screening tools that disproportionately impact
workers based on their protected status
(e.g., pre-employment tests, background checks
aecting African Americans and Latinos, date-of-
birth inquiries aecting older workers, and medical
questionnaires aecting individuals with disabilities).
The growth of the temporary workforce, the increasing
use of data-driven selection devices, and the lack of
diversity in certain industries and workplaces such as
technology and policing, are also areas of particular
concern. This priority typically involves systemic cases.
2. Protecting Vulnerable Workers, Including
Immigrant and Migrant Workers, and Underserved
Communities from Discrimination. EEOC will focus
on job segregation, harassment, tracking, pay,
retaliation and other policies and practices against
vulnerable workers, including immigrant and migrant
workers, and persons perceived to be members of
these groups, and against members of underserved
communities.
3. Addressing Selected Emerging and Developing
Issues. Under this SEP, EEOC will continue to prioritize
issues that may be emerging or developing. These
issues fall within this category:
a) Qualification standards and inflexible leave policies
that discriminate against individuals with disabilities;
b) Accommodating pregnancy-related limitations
under the Americans with Disabilities Act
Amendments Act (ADAAA) and the Pregnancy
Discrimination Act (PDA);
c) Protecting lesbians, gay men, bisexuals and
transgender (LGBT) people from discrimination
based on sex;
d) Clarifying the employment relationship and the
application of workplace civil rights protections in
light of the increasing complexity of employment
relationships and structures, including temporary
workers, stang agencies, independent contractor
relationships, and the on-demand economy; and
e) Addressing discriminatory practices against those
who are Muslim or Sikh, or persons of Arab, Middle
Eastern or South Asian descent, as well as persons
perceived to be members of these groups, arising
from backlash against them from tragic events in
the United States and abroad.
4. Ensuring Equal Pay Protections for All Workers.
EEOC will continue to focus on compensation
systems and practices that discriminate based on
sex under the Equal Pay Act and Title VII. Because
pay discrimination also persists based on race,
ethnicity, age, and for individuals with disabilities,
and other protected groups, the Commission will
also focus on compensation systems and practices
that discriminate based on any protected basis,
including the intersection of protected bases, under
any of the federal anti-discrimination statutes.
5. Preserving Access to the Legal System. EEOC
will focus on policies and practices that limit
substantive rights, discourage or prohibit individuals
from exercising their rights under employment
discrimination statutes, or impede EEOC’s
investigative or enforcement eorts. Specifically,
EEOC will focus on: 1) overly broad waivers,
releases, and mandatory arbitration provisions
(e.g., waivers or releases that limit substantive
rights, deter or prohibit filing charges with EEOC,
or deter or prohibit providing information to assist
in the investigation or prosecution of discrimination
claims); 2) employers’ failure to maintain and retain
applicant and employee data and records required
by EEOC regulations; and 3) significant retaliatory
practices that dissuade others in the workplace from
exercising their rights.
6. Preventing Systemic Harassment. Harassment
continues to be one of the most frequent complaints
raised in the workplace. Over 30 percent of the
charges filed with EEOC allege harassment, and the
most frequent bases alleged are sex, race disability,
age, national origin and religion, in order of frequency.
Forty-three percent of the complaints filed by federal
employees in fiscal year 2015 raised harassment.
This priority typically involves systemic cases.
EEOC Priorities Based on 2017-2021 SEP8 (Excerpts from SEP)
