Unnecessary Burdens on Employers: Time for the Eeoc to Improve Its Systemic Discrimination Initiative
Twomey, David P., Labor Law Journal
As the nation's leading enforcer of federal laws prohibiting employment discrimination, the Equal Employment Opportunity Commission (EEOC) has rightfully placed a high priority on issues that impact large numbers of job seekers and employees.1 Starting in 2006, the EEOC initiated a program devoting resources to investigating and litigating cases of systemic discrimination as a top agency priority.2 It defined systemic cases as "pattern or practice, policy and/or class cases where the alleged discrimination has broad impact on an industry, profession, company or geographic location."3 When the agency makes a finding of systemic discrimination and efforts to secure voluntary compliance fail, it may choose to file suit to enforce the law.4 In Fiscal Year 2011, the Commission filed twenty three lawsuits with at least twenty known or expected class members. These suits comprised nine percent of all its merit filings, and comprised the largest volume of systemic suit filings since tracking started in FY 2006.5
The EEOC has had much success in its evolving systemic program.6 As examples, in FY 201 1 the EEOC reported that it achieved settlement with Verizon Maryland, Inc. creating a $20 million fund to compensate approximately 800 victims who were disciplined or fired pursuant to an inflexible attendance policy that did not provide accommodation for disability related absences.7 Moreover, it obtained a consent decree with Roadway Express Inc. resolving inferior work assignments for black employees;8 it obtained a consent decree against the telemarketing firm International Profit Association in a pattern or practice sexual harassment case;9 and successfully concluded a nationwide age discrimination case against 3M Company.10 However, the EEOC did not report instances where it has imposed unnecessary burdens on employers and the courts in its systemic initiative. Part II of the paper deals with the EEOC v. CRST Van Expedited Inc. decision of the Eighth Circuit Court of Appeals, where the EEOC failed to reasonably investigate and conciliate in good faith with a large trucking company, placing an unreasonable burden on the employer and the courts." Part III of the paper deals with the EEOC v. Peoplemark Inc. decision, where the United States District Court for Western Michigan determined that the EEOC had imposed an unacceptable burden on a temporary staffing company, and the court awarded the company limited attorneys' fees and expenses.12 Part IV of the paper shows how the EEOC can address the procedural and competency issues made evident in the CASTand Peoplemark cases; and makes a modest proposal for building neutrality into the investigation stage of the EEOCs prelitigation procedures.
II. Investigation and Conciliation Obligations of the EEOC: The CRST Case
In EEOC v. Van Expedited, Inc.,18 the United States Court of Appeals for the Eighth Circuit reviewed a federal district court's series of rulings that collectively disposed of the EEOCs entire action against CRST Van Expedited, Inc. (CSRT), which alleged that CRST had subjected Monika Starke and 270 similarly situated female employees to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. 14 The district court awarded CRST $4,467,442.90 in attorneys' fees and expenses.15 A principal determination of the district court was that the EEOC failed to reasonably investigate and conciliate in good faith with CRST16 The appeals court majority affirmed the district court's decision that the EEOC failed to reasonably investigate and conciliate in good faith, but reversed the grant of summary judgment against Monika Stark and Tillie Jones, and vacated, without prejudice, the district court's award of attorneys' fees to CRST because it was no longer the "prevailing" defendant with the continuation of the litigation in the cases of Stark and Jones.17 The Eighth Circuit majority set forth in careful detail the basis for its decision in its review of the six dispositive rulings of the U. …