By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On January 8, 2021, the EEOC unveiled a new webpage explaining the administrative and litigation tools used by the Commission to identify and pursue systemic discriminatory practices. This new guidance is the latest in a number of high priority developments at the EEOC this year and is an absolute must-read for employers.

As part of its recent shift to make its processes more transparent to employers and the public, the EEOC’s new webpage provides insights about how the Commission approaches systemic discrimination enforcement efforts. Historically, the EEOC described systemic cases as pattern or practice cases – also often called systemic cases (but not to be confused with Rule 23 class actions, since Rule 23 does not apply to lawsuits brought by the EEOC) – where the discrimination has a significant impact on an industry, profession, company, or geographic location. Over the past several years, the EEOC has taken steps to improve its nationwide approach to addressing systemic issues.

Now, for the first time in several years, this new webpage provides a specific statement about how the Commission defines “systemic” and its approach to addressing such issues. Specifically, the webpage provides background on how the Commission determines that systemic enforcement is effective, explains how the EEOC decides what qualifies as systemic discrimination, and outlines the Commission’s process for initiating and conducting a systemic case.

In the press release announcing the webpage, EEOC Chair Janet Dhillon stated that “[t]he EEOC is strongly committed to making our processes fully transparent and useful to the public,” and that “[s]ystemic enforcement is an important mechanism the Commission uses to remedy discrimination that has broad impacts on industries, professions, or geographic areas.  It is vital that the public knows how we use this tool.”

Implications For Employers

The EEOC’s new webpage is not only helpful to employers, but also is likely a way for the Commission to instruct its field staff now and in the future as to how to identify and address systemic discrimination. The EEOC’s latest shift toward transparency will likely improve consistency among the EEOC’s field offices and provides guidance for employers who are dealing with the Commission on these issues.

The ongoing changes at the Commission are a must-watch for employers as the EEOC continues in its 2021 fiscal year, and we will be tracking the latest developments here.