EEOC's Systemic Bias Initiative Prompts 'Culture Change'

EEOC Vice Chair: Year-Old Initiative Results in ‘Culture Change’

By Allen Smith, J.D. Apr 4, 2007
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The first year of the Equal Employment Opportunity Commission’s (EEOC) systemic anti-bias program has brought about a “culture change” at the agency, according to Vice Chair Leslie Silverman.

Changing employee culture “does not happen overnight,” she said, but Silverman told HR News that the initiative has helped the EEOC operate as a civil rights enforcement agency for the entire country. That hadn’t been the case before the initiative, she reflected, saying that district offices had operated separately.

Employers are noticing more systemic discrimination cases, particularly in cases of failure to hire, according to Cheryl Behymer, an attorney with Fisher & Phillips in Columbia, S.C. Employers should have a plan in place to respond to the EEOC’s focus on systemic discrimination, said Behymer, who recommends self-audits.

Some Grumble, Some Get Excited

Silverman’s leadership on a task force report on beefing up the agency’s investigation and litigation of systemic discrimination in the workplace culminated on April 4, 2006, with the commission adopting all 100 of the report’s recommendations.

Not everyone at the agency welcomed the resulting changes.

There was some grumbling, Silverman acknowledged. Although some district offices had provided “wonderful examples” of bringing systemic discrimination claims even before the adoption of the initiative, other district offices rarely, if ever, pursued such claims. It was easier for those offices to simply work on the claims of charging parties who walked in the door.

As the task force stated in its report, “over the past decade, there has been a significant decrease in proactive efforts to identify systemic discrimination through research and analysis. Moreover, no office or unit is responsible for looking at the ‘big picture’ nationwide—e.g., proactively reviewing charge data, survey data submitted by employers or other information in order to identify possible instances of systemic discrimination.”

Silverman said she is excited by the progress in the initiative’s first year, noting that EEOC headquarters has received and approved plans from all of its district offices to pursue claims of systemic discrimination.

The agency has made it clear to staff from the top to the bottom that systemic work is a priority for district and regional attorneys, Silverman remarked. All investigators now should be mindful of systemic discrimination, though not all will or should be involved in pursuing these cases, she commented. But some attorneys have stepped forward and said, “Great! I want to work on these cases and get involved.”

The culture change is, in effect, fostering more of a team approach. Technology upgrades also have played a key role in facilitating more coordination between district offices and headquarters, and among district offices.

“We’ve worked with the Office of Technology. They’ve been working hard to make nationwide charge data more accessible to all staff,” Silverman said.

Self-Audits

As the agency challenges systemic discrimination more aggressively, Silverman encouraged employers to opt to conduct self-audits in order to identify such barriers in hiring and in access to high-paying jobs as:

  • Women excluded unlawfully from work dominated by males.
  • People with disabilities subjected to unlawful pre-employment inquiries.
  • Older workers discriminated against in promotion decisions, as well as in reductions-in-force.
  • Policies or practices that discriminate systemically based on individuals’ race or national origin.
  • Managers making decisions based on unlawful personal biases.
  • Reliance on word-of-mouth recruiting rather than recruiting from a wide pool of candidates.

Word-of-mouth recruiting isn’t prohibited by Title VII, Behymer said, but she added that if word-of-mouth recruiting results in a workforce that does not reflect the demographics in the community appropriately it “potentially could be a target” of investigation under the law.

Silverman cautioned employers against relying on biased preferences of customers in making hiring decisions, saying this will lead to discriminatory practices. She noted that some best practices for employers include:

  • Focusing on job-related criteria when hiring.
  • Putting in place and enforcing good anti-discrimination policies.
  • Providing training on anti-discrimination policies.

Behymer agreed that that self-audits are a good idea. In addition, she recommended that employers covered by Title VII use technology that federal contractors and subcontractors use, even though Title VII requires only nondiscrimination—not affirmative action—and consequently does not require affirmative action plans.

Behymer told HR News that employers nevertheless should look at the statistics of available workers in their area and industry, because the EEOC increasingly is looking at these statistics as part of the systemic discrimination initiative. Such statistics may come into play in Title VII litigation, for example, when neutral policies and practices result in an unlawful disparate impact.

“Employers still, thank goodness, are allowed to hire the best qualified candidates as long as they try to increase diversity efforts in recruiting and as long as they are not hiring one over another because a person is part of a particular class,” Behymer stated.

A consistent approach in hiring and setting up good criteria for jobs—including “good, clear job descriptions,” recruiting from diverse sources and the consistent application of hiring criteria—are essential, she said, “to stay out of trouble.”

Allen Smith, J.D., is SHRM’s manager of workplace law content.

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