Combating systemic discrimination and harassment has been “a top priority” of the Equal Employment Opportunity Commission (EEOC) for years. Construing “systemic” as any “pattern or practice, policy, and/or class case[] where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area,” the agency reaffirmed that commitment in its Strategic Enforcement Plan for 2017-2021. But given some of its recent activity, the EEOC appears to be ramping up its enforcement in California even more.

The EEOC’s Strategic Enforcement Plan Priorities

The EEOC has broad statutory authority to litigate systemic discrimination and harassment cases under Title VII of the Civil Rights Act of 1964, as well as under the numerous other federal statutes that it enforces (i.e., the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, the Genetic Information Nondiscrimination Act, and the Pregnancy Discrimination Act).

The EEOC construes “systemic” to encompass any “pattern or practice, policy, and/or class case[] where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.”

Among the EEOC’s strategic enforcement priorities are:

• Eliminating barriers in recruitment and hiring, particularly class-based practices that discriminate against protected groups, including: racial, ethnic, and religious groups; older workers; women; and people with disabilities.
• Ensuring equal pay protections for all workers, targeting compensation systems and practices that discriminate based on gender, but also on persistent pay disparities based on any protected basis, including the intersection of protected bases.
• Preventing systemic harassment.

Recent EEOC Activity

The EEOC has ramped up prosecution of what it believes to be systemic discrimination and harassment cases in California, with just the EEOC’s Los Angeles District filing at least three new cases against California employers within the past two months.

In late August, the EEOC filed a pattern or practice lawsuit against a California restaurant. The lawsuit claims, among other allegations, that the employer permitted female employees to be subjected to sex-based harassment by male managers and co-workers that included repeated, frequent and offensive sex-based remarks, and unwelcome physical touching. It also claims the company failed to properly investigate and respond to complaints; that employees were forced to continue working with their harassers, even after they had complained; and that they were subjected to retaliation.

The very next day, the same EEOC office filed a second pattern or practice lawsuit against another California food and beverage industry employer, asserting the employer violated federal law by allowing a class of female employees to be subjected to sexual harassment. Specifically, the lawsuit alleges that since at least 2017, male managers were allowed to sexually harass female employees daily through unwanted and repeated sexual advances, sexual comments and sexually offensive conduct, including unwelcome physical contact. The EEOC further alleges that the employer did not properly investigate the complaints or take proper steps to prevent the ongoing sexual harassment, even after complaints were raised. Some female employees who complained faced retaliation or were forced to leave the workplace, the agency says.

Most recently, on September 13, 2022, the EEOC filed a pattern or practice systemic discrimination lawsuit against a national staffing agency and a California employer in the commercial laundry industry, alleging that the employers failed to recruit, refer, and hire Black, Asian, and White applicants for low-skill positions since 2015. Further, the action alleges that one of the employers requested only female applicants for certain “light” job positions and only male applicants for “heavy” job positions, and that the other employer acquiesced in this sex discrimination by recruiting and referring applicants based solely on their sex. Finally, the EEOC claims that they implemented unlawful hiring criteria (i.e., excluding qualified individuals with disabilities, perceived disabilities, or a record of a disability) by requiring job applicants to have no medical conditions or history of injury prior to employment.

Takeaways

Employers must beware when responding to EEOC charges or requests for information, as the agency has indicated that it will not hesitate to escalate isolated charges into systemic investigations (and litigation) if the facts of the case promote their strategic enforcement priorities. Further, special caution must be taken when engaging with the EEOC because the agency is better resourced than many plaintiff-side law firms (i.e., the agency has access to EEO-1 data for analyzing workforce demographics, each district is staffed with systemic investigators, and each district has access to nationally available litigation support services). Further, unlike private plaintiffs, the EEOC can sue on behalf of a class of employees without complying with the class certification requirements under Rule 23 of the Federal Rules of Civil Procedure.

Employers facing EEOC charges would be wise to engage legal counsel to analyze whether the facts of the charge or content of any draft responses might raise a red flag to EEOC for potential systemic investigation, which can be overwhelmingly costly to defend. Experienced legal counsel can evaluate the risk of litigation, and the risk of class litigation in particular, as they assist employers in preparing their position statements and other responses to the EEOC.

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