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New EEOC Program Draws Varied Reactions

Experts say the EEOC's new systemic anti-bias program has the right intentions. Time will tell if it has the desired results, they say.

Monday, April 17, 2006
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Experts differ on whether the Equal Employment Opportunity Commission's commitment to coordinate and strengthen its nationwide efforts to investigate and litigate systemic workplace bias will help curb workplace discrimination.

On April 4, the commission voted unanimously on seven separate motions to adopt an internal task force's recommendations. The Systemic Task Force, led by Commissioner Leslie E. Silverman, defined systemic cases as "pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company or geographic location."

While acknowledging the EEOC has pursued many systemic cases successfully, the committee found "many opportunities for improvement," according to the report the task force presented the organization.

"The EEOC does not consistently and proactively identify systemic discrimination," the report stated. "Instead, the agency typically focuses on individual allegations raised in charges."

"We should act like a national law firm," said Mary Jo O'Neill, regional attorney for the Phoenix district office of the EEOC, in a statement. "National employment law defense firms are staffing cases strategically, and the EEOC should do the same," she said.

The decision was not a surprise, says Steven Mierl, partner with Austin, Texas-based employment-law firm Cornell, Smith & Mierl.

For some time, "it looked like [the EEOC] was going to make a change in how they were going to litigate," he says.

Typically, the EEOC sees about 80,000 charges filed per year, says Lawrence Lorber, a partner with New York-based law firm Proskauer Rose. As such, he says, the agency has devoted significant time to complaints that were ultimately found to lack merit, and it has been criticized for "not bringing many cases."

He sees the new, more systemic approach as an effort to maximize resources and attack the problem of workplace bias on a larger scale rather than one individual plaintiff at a time.

Mierl concurs, and says the new, nationwide initiative signifies a continuing shift in the agency's focus.

"I don't think it's been any secret," Mierl says, "that the EEOC likes to take on high-profile companies," such as chain retail stores, hotels, etc. Such large class-action suits, he says, certainly create publicity and draw attention to the issue of workplace bias.

"That's not to say [the agency] won't go after smaller operations," he continues. But, the organization "gets the most bang for their buck" by concentrating its efforts on large, well-known companies, he says.

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So, in terms of raising awareness, the EEOC's systemic program could serve as "one of the tools to root out and eliminate discrimination," Mierl says, and "will probably be a very successful method."

But Lorber is less convinced the agency's more decentralized strategy will pay off.

"Most big law firms I'm aware of have centers of authority," he says. While it makes sense for the EEOC to fully utilize its resources by using nationwide staff and resources, he adds, it is possible the organization's attempt to bring more systemic cases "seems to be defusing [centralized] authority even further."

He fears some aspects of the initiative ? the additional involvement of regional attorneys, the creation of an advisory committee, etc. ? could create unnecessary bureaucracy.

"I don't really know what that means in terms of bringing cases," Lorber says.

Mierl, however, predicts success, but he is quick to add the EEOC's systemic program is just one part of an ongoing effort, which includes simple preventive measures.

"There is still a basic need," he says, "for cultural understanding, training and education."

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