Four ways to prevent systemic discrimination in your workplace, before an EEOC charge.

File Nov 12, 8 48 55 PM

Oh, hi there. Uh, this? It’s not a comic book. It’s a GRAPHIC NOVEL, folks! And, yes, I need to highlight my favorite passages in this library book. It’s how Sartre did it.

Quit judging me, would ya? Nothing more to see here. Read on.

A week or so ago, Robin Shea had a great post at the Employment and Labor Insider in which she listed ten of the hottest litigation trends at the EEOC. You’ll find some obvious ones (ADA accommodations, retaliation), and maybe one or two that may not be on your radar (immigrant/migrant/”vulnerable” workers).

The source of this great list is David Lopez, EEOC General Counsel. Last week, with Mr. Lopez in Philly for the ABA Labor and Employment Law Conference, we were able to catch up over burgers and these life-altering meatballs. Over lunch, we discussed lots of EEOC-related stuff, including LGBT rights — PS, we’ll talk more about that in December, and you’re invited — and systemic discrimination.

What is systemic discrimination?

The EEOC has major beef with systemic discrimination, which it describes here as “involving a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.” Indeed, the EEOC has made systemic enforcement a top priority through 2016.

Case in point, this action now pending in federal court in Florida. The EEOC alleges that a national restaurant chain has engaged in age discrimination through a “standard operating procedure of denying employment to applicants” over the age of 40. According to the EEOC complaint, the defendants’ hiring officials told unsuccessful candidates over 40 that “you are too experienced”; “we are looking for people with less experience”; “we are not looking for old white guys”; “we are looking for ‘fresh’ employees”; and that the restaurant wanted a “youthful” image.

The defendants moved to dismiss the complaint on the basis that the Age Discrimination in Employment Act does not permit the EEOC to pursue systemic discrimination claims. And while the court acknowledged that the defendants’ argument “is not baseless” — talk about a backhanded compliment — it basically gave the defendants’ argument the back of the hand and concluded that the EEOC could pursue a systemic age discrimination claim.

How can you avoid systemic discrimination claims?

The first thing you need to do is address any potential systemic discrimination in your business now before you receive an EEOC Charge. By then, it’s way too late; you might as well whip out the checkbook.

Systemic discrimination claims arise from a pattern or practice that may violate the law. So, consider a workplace audit that covers your employee handbook, other workplace policies, and HR-related practices. Make sure that these items don’t have an adverse impact on a particular protected class. Likewise, consider a statistical analysis to compare hiring numbers at your company with industry peers. In the hiring context, many systemic discrimination claims are built on statistical analysis of applications submitted and local hiring data. Train your managers to assess individuals (employees, applicants) on their own merits, rather than with preconceived ideas and stereotypes. Involve an employment lawyer to ensure the effectiveness of corrective measures, and at the first signs of a systemic discrimination claim.

Now, let me get back to my Shakespeare.