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Check your hiring practices! EEOC takes aim at systemic bias

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in Discrimination and Harassment,Employment Background Check,Hiring,Human Resources

The EEOC received 99,922 charges of alleged discrimination in 2010, the highest number in recent history. As its workload has increased, the commission has sought greater funding so it can pursue cases in which employer hiring practices discriminate broadly against members of protected classes.

Those practices include using criminal background checks and credit-history checks to screen applicants. Also targeted: the refusal of some employers to hire people who are unemployed and searching the Internet for information about applicants.

Known within the EEOC as the “systemic initiative,” the program was a major focus of EEOC Chair Jacqueline Berrien’s statements in the commission’s fiscal year 2012 Congressional Budget Justification that was submitted earlier this year.

Asking for a bigger budget, Berrien stated that a “strong, nationwide systemic initiative not only ensures that agency resources are directed towards addressing issues that will have broad impact in the workplace, but because systemic cases generate substantial media and other public notice, they help to deter other employers from engaging in similar prohibited conduct.”

The EEOC says the systemic initiative prioritizes the “identification, investigation and litigation of pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company or geographic location.”

Gearing up, clearing backlogs

The EEOC is already using recent budget increases to hire new staff and strengthen agency training programs on systemic case investigation and litigation. As of February 2011, the EEOC employed 10 lead investigators dedicated exclusively to systemic cases. It has also hired additional experts for systemic investigations and invested in technology that allows regional EEOC offices to better share data about the types of claims they are receiving.

The EEOC’s heightened focus on system litigation is evidenced by its pending systemic inventory, which consists of 6,361 cases filed between 2008 and 2010. At the end of fiscal year 2010, the EEOC was litigating more than 60 cases of systemic discrimination, which represented about 14% of its active litigation docket. That percentage is expected to grow in coming years.

EEOC’s PR blitz

The commission is working hard to make sure the public knows about the systemic initiative. For example, it is running radio ads in Baltimore, asking black candidates applying for jobs at a restaurant chain to call the EEOC about joining a pending class-action race discrimination case.

EEOC General Counsel P. David Lopez recently told the San Antonio Express-News that the current sluggish economy has compelled the commission to focus on identifying discriminatory hiring practices and policies that exclude people from the workplace.

Employer practices targeted

The EEOC’s litigation strategy is based on the belief that using criminal background and credit-history checks has a disparate impact on protected groups.

The EEOC has filed two lawsuits challenging employers’ use of criminal history and credit-history checks in their hiring processes: one against The Freeman Companies convention-planning firm in 2009 and another against Kaplan Higher Education Corp. in 2010.

In his San Antonio Express-News interview, Lopez explained the EEOC’s interest in targeting potentially discriminatory online searches about job applicants. It is commonplace today for employers to Google job applicants and read their Facebook pages.

“There is the potential that if employers do that, certain classes of individuals will be scrutinized more heavily and you will only look at the Facebook pages of certain applicants,” Lopez said. “There are potentially disparate treatment implications in doing that. We all want employers to hire the best people. But employers have to ask whether this is actually serving that purpose.”

Focusing on employers’ searches on Facebook and other web sites appears to be new territory for the EEOC. Despite the challenges for employers, the EEOC’s position is not likely to change in the near future.

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