The EEOC has repeatedly emphasized that its systemic program is a primary enforcement initiative, including systemic enforcement as one of its six priorities in the current SEP. The EEOC defines “ systemic discrimination” 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.”

The EEOC has broad statutory authority to pursue this enforcement initiative. The EEOC derives from Section 707 of Title VII the authority to file “pattern or practice” lawsuits against employers. Relying upon that authority, the EEOC has pursued systemic investigations not only in cases in which the underlying allegations contain “pattern or practice” claims, but also in situations in which the EEOC expands its investigation to include “pattern or practice” claims based on allegations raised in an individual charge. Section 706 also permits the EEOC Commissioners to issue charges, including those alleging systemic discrimination, on their own initiative. Further, the Equal Pay Act (“EPA”) and the Age Discrimination in Employment Act empower the EEOC to initiate “directed investigations” into potential equal pay violations or potential age discrimination, respectively, even in the absence of the filing of a charge.

The EEOC has prioritized its systemic enforcement initiative since the creation of a Systemic Task Force in 2006. That initiative continues to pursue expansive investigations against employers. According to the EEOC’s most recent Performance and Accountability Report (“PAR”), the agency completed 260 systemic investigations in FY 2014, and recovered $13 million in monetary relief as part of 78 voluntary agreements.

Although these figures appear small in comparison to the 88,778 total charges filed in FY 2014, employers should be wary. One systemic investigation can be extremely burdensome on an employer, given that such investigations, on average, involve far more people and data than an individual charge. Particularly where the EEOC finds reasonable cause to support “pattern or practice” claims, these investigations encourage additional lawsuits by individuals who claim that they were injured by the discriminatory practice. Moreover, the EEOC is far more likely to issue a reasonable cause determination in a systemic investigation than in the average case: in FY 2014, the EEOC found reasonable cause in 45 percent of systemic investigations, as opposed to just 3.1 percent of all charges.

In addition to investigations, the EEOC also pursues systemic claims in litigation, filing 17 systemic lawsuits in FY 2014. At the end of that fiscal year, 57 of the 228 cases (i.e., 25 percent) on the EEOC’s active litigation docket focused on systemic matters, representing the largest portion of systemic suits pursued by the EEOC since tracking began in FY 2006.

Employers should expect the EEOC to continue to aggressively pursue systemic cases. The PAR for FY 2014 states that, through FY 2018, the EEOC will seek to maintain 22-24 percent of its litigation docket as systemic cases. There also are indications that workplace harassment will be a focus of the EEOC’s systemic litigation initiative, given the SEP’s focus on preventing harassment through systemic enforcement. In the first commission meeting over which she presided as Chair, which addressed workplace harassment, EEOC Chair Jenny R. Yang stated that the EEOC intends to pursue systemic enforcement to prevent workplace harassment and “promote broader voluntary compliance.” (See here)

On multiple occasions, the EEOC has received an individual charge and expanded the scope of its investigation, ultimately resulting in a reasonable cause finding and a federal lawsuit. Certainly, the EEOC has broad investigatory powers to obtain evidence relevant to the charge under investigation. In EEOC v. Shell Oil, 466 U.S. 54 (1984), the U.S. Supreme Court suggested that the term “relevant” in the context of EEOC’s request for evidence related to its investigations is far broader than the scope of discovery under the Federal Rules of Civil Procedure. Nonetheless, the EEOC is not entitled to embark on a fishing expedition.

Thus, in the context of charge investigations, employers must be vigilant of the EEOC’s attempts to expand the scope of investigations and issuance of broad requests for information. Although prudent employers will work in good faith to provide necessary information for the EEOC to complete its investigation, employers should be prepared to negotiate with EEOC investigators to limit the scope of inquiry and to avoid any over-reaching. Limiting the EEOC’s investigatory scope to the specific allegations at issue will remain a key to preventing any individual charge from expanding to a systemic investigation or litigation.