by Jerome Rose
The Equal Employment Opportunity Commission (EEOC) has been pursuing cases beyond its traditional reach to expand its enforcement authority toward a goal of developing and litigating systemic cases (i.e., cases in which a policy or practice discriminates on a broader basis, as opposed to a single decision affecting a single employee). As a result, it’s important for employers (especially large employers) to understand that pursuing systemic charges is a “top priority” under the agency’s Strategic Enforcement Plan (SEP) for Fiscal Year (FY) 2012 through FY 2016. 
Multipronged approach
The EEOC is making significant progress in pursuing systemic cases through the administrative process as well as through litigation. Here’s a look at some of the ways in which the agency is carrying out its plan.
District offices. In furtherance of the SEP, EEOC district offices are being encouraged to develop District Complement Plans (DCPs) that focus on local businesses when the alleged discrimination may have a broad impact on a given industry, profession, or geographic area. District offices are also encouraged to establish “lead systemic investigators” to develop and coordinate systemic investigations. As a result, EEOC systemic targets in the near future will no doubt include many local as well as national businesses and employers.
Systemic watch list. The EEOC has developed a “systemic watch list” to keep its technology up-to-date and improve its capacity to identify systemic violations and manage systemic investigations and litigation. The systemic watch list is a software tool that matches ongoing investigations or lawsuits. It’s designed to improve the coordination between the investigators who are engaged in similar systemic investigations.
CaseWorks. The EEOC is expanding its CaseWorks system to provide a central shared source of litigation support tools that facilitate the collection and review of electronic discovery (i.e., the gathering of evidence in preparation for litigation). The system enables EEOC investigators to collaborate in the development of cases for litigation. For example, the system allows investigators to share data on large employers that operate regionally or nationwide. The EEOC has increased its CaseWorks storage capacity by 150 percent, and the system currently hosts more than 30 million pages of electronic documents.
Systemic investigations and lawsuits in FY 2014
According to its performance results for FY 2014 (the results for 2015 aren’t yet available), the EEOC completed 260 systemic investigations. Seventy-eight of those investigations were resolved by voluntary agreements. Thirty-four were resolved by a “predetermination settlement” (i.e., before a finding of “cause” was made), and 44 were resolved by a conciliation agreement (after a finding of cause). The EEOC obtained approximately $13 million in monetary relief on behalf of affected class members in FY 2014.
The EEOC filed 17 systemic lawsuits in FY 2014, and at the end of that year, systemic lawsuits made up 13 percent of the agency’s lawsuits filed on the merits. By the end of FY 2014, there were 57 systemic cases on the EEOC’s active docket, accounting for 25 percent of all active EEOC cases for the year. This was the largest proportion of systemic cases on the EEOC’s active docket since FY 2006, when the agency began keeping individual records of such cases.
The number of systemic cases in the administrative process and in litigation is expected to increase in FY 2015. Employers should remain aware that the EEOC is gradually acquiring all of the tools it will need to aggressively investigate and prosecute systemic cases.
Takeaway
Having made the development of systemic cases a major priority 
under its SEP for FY 2012-16, the EEOC is now taking active steps to implement that plan. The agency isn’t merely trying to increase the number of systemic cases it pursues; it’s also trying to expand the scope of its discretion to investigate and litigate systemic cases under Title VII of the Civil Rights Act of 1964.
Jerome Rose is an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C. in Birmingham, Alabama. He may be contacted at jrose@lehrmiddlebrooks.com.