The hidden messages in EEOC’s ‘official’ agenda
February 10, 2012 by Tim GouldPosted in: Discrimination, Employment law, Hiring, Special Report
The Equal Employment Opportunity Commission has unveiled its strategy for enforcing workplace discrimination laws over the next few years. Here’s what employers need to look out for.
In its recently released draft strategic plan, the agency made it clear that the aggressive approach it’s been taking during the Obama administration won’t be changing, despite budget cuts.
Plan on EEOC continuing to focus on what it calls “systemic discrimination” — situations in which a pattern of hiring/screening procedures could prove discriminatory for a certain group of employees or applicants.
Example: The recent case in which Pepsi Beverages agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination.
An EEOC investigation found that the criminal background check policy formerly followed by Pepsi discriminated against African Americans in violation of federal anti-bias laws.
Not too tough to figure out why the agency wants to laser in on the “systemic” cases: They involve the biggest number of workers, they can potentially generate the biggest settlements — and (forgive our cynicism) they get the most publicity.
A ‘holistic’ approach
Another significant development outlined in EEOC’s strategic plan: The agency plans to streamline the way it investigates and litigates complaints.
In the arcane language of the feds, EEOC officials describe the process as creating an “integrated, holistic approach to enforcement from beginning to end, without separating the investigation and conciliation state of the (agency’s) work from its litigation stage.”
What that likely means for employers: More paperwork. If an employee files an EEOC claim, the agency will probably want more documentation earlier in the process than in the past.
‘Targeted, equitable relief’
One more ominous development in the strategic plan: The agency says it’ll be focusing on “targeted, equitable relief” not just to individual complainants, but to “all employees and job seekers.”
Although the plan document doesn’t specify exactly what form that relief will take, it’s expected to involve requiring more supervisor training and outside monitoring of employment practices.
Tags: eeoc, equal employment opportunity commission, systemic discrimination
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February 13th, 2012 at 10:53 am
This is NOT cynical – it is factual. The government is much more interested in “revenue enhancement” that equal opportunity.
Before some of these regulations are implemented, we should demand the government show how many jobs are sent to other countries b/c of such oppressive regulation. One company in my area had to spend 3 months (!) dealing with an OFCCP audit.
And, let’s not forget that the government’s MO is that you’re guilty until/unless you can prove yourself innocent. And I suspect some simply pay the fine (w/o admitting guilt) just to make the government go away.
HR should speak up LOUDLY about these abuses. That would give us a seat at the table.
February 13th, 2012 at 2:08 pm
So in the Pepsi Case the companies background check policy was found to discriminate against African Americans, yet the background check policy applied to all applicants, white, hispanic, asian, native american etc and it didn’t discriminate against them. The EEOC has become just another evil part of the overstepping Federal Goverment, instead of standing up for justice, they discriminate in the name of anti-discrimination.
February 13th, 2012 at 4:43 pm
If a policy discriminates against a certain group, and isn’t a bonafied job requirement, then even though it is uniformly applied to all applicants and even though it may not be done intentionally, it is still discrimination – institutional discrimination. For example, if you require that all applicants be able to lift 150 lbs., but the actual job doesn’t require you to lift 150 lbs., you may be discriminating against women, as fewer women can lift that weight.
Another example (although not job related) might be if the state requires a photo id to vote, it may be discriminating against minorities that are less likely to have a photo id. A question may arise whether it is necessary to have a photo id to vote, AND whether political iterests are at work to intentionally discriminate against a group that typically votes strongly for one party.
The point is that your policies can be discriminatory even if you don’t intend them to be AND even if you apply them to everyone.
February 14th, 2012 at 4:04 pm
H2r, I’m not sure where you are going with your post. In the Pepsi’s case, the company has an obligation to the safety of its employees and guests. Your background check comes back with a conviction, and you don’t get hired. As long as that is applied to all applicants what’s the problem? We’re not talking 150 pounds, we are talking about people who have commited crimes. If you want to work here keep you nose clean.
February 15th, 2012 at 11:21 am
That is exactly what I’m talking about, just because someone has a conviction doesn’t mean they are a danger to your employees and guests. If it’s a murder conviction I agree, but if it is just petty theft conviction then no.
Since some minorities have higher arrest rates (which in itself may be a result of discrimination) a policy that doesn’t make the distinction between violent and non-violent convictions and then rules out individuals with non-violent convictions for the “safety of employees and guests”, could be discriminatory in spite of being applied equally to everyone.
February 15th, 2012 at 12:05 pm
Again I have to disagree with you. For one, an arrest doesn’t equal a conviction, and the employer is also liable for the guests and other employees belongings. Thieft, shoplifting, braking and entering are all non-violent crimes, but would you want a person that has been “convicted” of any of the above cleaning your room or checking your coat, parking your car? The government is great these days at telling companies who they have to hire just to have the legal system turn around and tell them that they should have known better and ruling against them in a law suite. I’m sorry, I guess we will have to just agree to disagree.
February 16th, 2012 at 7:37 pm
There are no hidden messages here. Discriminatory practices that are facially neutral are still discriminatory practices. If the EEOC has to threaten or apply fines to get all employers to take notice, then so be it. Those employers with policies and practices that provide fair treatment to all members of society have nothing to worry about. No one is telling employers who they must hire, or cannot hire; but they are being told they cannot discriminate (even unintentionally) on the basis of race, color, religion, sex, or national origin. Whether you call it systemic discrimination or institutional discrimination, it is alive and well in today’s work place. I applaud the EEOC for actually taking steps to “E-RACE” it.
February 17th, 2012 at 11:20 am
For decades, conservatives have tried to eliminate programs that they don’t like. When they can’t eliminate them they try to obstruct their regulatory power by defunding them. Now that the EEOC is stepping up investigations and fines for offending business, a larger share of the funding comes from the offending businesses and less from society in general. Business doesn’t like it, but in this one RARE instance I think the conservatives have accomplished something good, although the complete opposite of what they anticipated – relaxed regulations.
February 17th, 2012 at 12:32 pm
I am still waiting for the EEOC to open a high profile investigation on the NBA. The vertically challenged Caucasians, Asians and Hispanics have all been subjected to ““systemic discrimination” — situations in which a pattern of hiring/screening procedures could prove discriminatory for a certain group of employees or applicants.”
P.S. H2r has expressed concern in regards to voter discrimination “against a group that typically votes strongly for one party.” It is true that several states have now adopted these anti-fraud rules that require voters to have an i.d.. The reason these laws exist are to preserve the integrity of the election. A noble pursuit indeed. A cornerstone of this Republic we call America. Elections do need to be closely monitored, especially since we all are familiar with the fraud that does exist. I hail from corrupt state of Illinois and am especially sensitive to this problem. I believe that most states (if not all) that have enacted this type of legislation have been very sensitive to the plight of poor and minority voters by enabling them to receive free state id cards. The easy and free availability of state ids should alleviate any fears among most reasonable people of a repressed vote. After all, It is simply irresponsible to continue to let non-citizens and dead people claim a stake in America’s future.
February 17th, 2012 at 1:19 pm
I find Common Sense’s self-title a bit ironic. I know he/she is joking about the NBA because it is a perfect example of how the job selection process is suppose to work – the person with the best job qualifications and fits the team’s needs gets the job, period. Now, if the NBA said, “we won’t hire anyone with a criminal record,” then we would have institutional discrimination — due to the fact that certain minority groups make-up a disproportionate percentage of persons with criminal records, and the fact that the criminal record may have nothing to do with the applicant’s ability to play basketball and be a good team member. That determination would be made by a fair analysis of the relationship between job and the seriousness of the offense, etc. All the EEOC wants employers to do is adopt policies that at least attempt to comply with Title VII of the Civil Rights Act. I am part of the background screen biz and believe it is vital for employers to continue to have access to criminal records, but using them unfairly is only going to hurt them and our industry in the long run.
February 17th, 2012 at 6:50 pm
@JPB Well said, but If you know I was joking (and you are correct), how is my “title” ironic? Are people with common sense unable to crack a joke?
With that being said, it looks like the NBA is at least aware of their Asian/Harvard quota problem now that a team has finally given Jeremy Lin a chance to show his worth.
March 1st, 2012 at 9:00 am
Try getting a job with the FBI with a criminal record – wonder if they call it institutional discrimination there!
March 1st, 2012 at 5:24 pm
Mark, don’t you think the FBI has an extremely high level of bona fide business necessity to screen out people with criminal records — because of the risk and job-relatedness of the position? I have no personal experience with the FBI’s disqualifying criteria; I would hope an applicant with something old and petty could still qualify after due consideration of the factors involved. Regardless, I continue to be amazed at how many people (not necessarily anyone in this thread) do not accept that institutional discrimination is real phenomenon.
March 14th, 2012 at 3:44 pm
Can people without a photo ID clear TSA for air travel? If not, isn’t this discrimination against minorities (as suggested by H2r) that are less likely to have a photo id?
March 15th, 2012 at 1:05 pm
2nd Guest poses an excellent question. People need photo ID’s to cash check’s, get a job, buy alcohol, tobacco, medicines, guns, use a credit card, get on a plane, rent an apartment, watch an R-rated movie, get a passport, go to a bar, buy a house or car…
Are movie theatres discriminating against minorities? Where is the outcry?
Some states have gone as far to hand deliver the i.d.’s to the voters residence, yet cries of discrimination can still be heard. At some point it stops being about discrimination and starts being about personal responsibility and election integrity.
March 15th, 2012 at 2:37 pm
@Common Sense- Yes you are correct. It’s just another excuse for those who didn’t get their way to whine and cry. Don’t get me wrong, I firmly believe that discriminiation exists whether intentional or unintentional through disparate treatment or adverse impact. However, I don’t believe that requiring a photo ID should even fit this bill as you said. If it does discriminate, then those who don’t have a photo ID should get one and it would thus stop. It’s not like they don’t have the “equal opportunity” to get one. Next thing you know, these groups will be yelling they were discriminated against because they didn’t get out to vote.