Meyers, Roman, Friedberg & Lewis has a Coronavirus Response Team. Contact Jon Hyman to help with how your business should
continue to respond to this national emergency.


Monday, January 11, 2021

“Beware systemic discrimination,” says EEOC to employers


Systemic discrimination has multiple meanings, according to the EEOC:
  • A "pattern or practice, policy, and/or class cases where the discrimination has a broad impact on an industry, profession, company, or geographic location."
  • "Bias that is built into systems, originating in the way work is organized," referring to "structures that shape the work environment or employment prospects differently for different types of workers."
  • "Patterns of behavior that develop within organizations that disadvantage certain employees and become harmful to productivity."
Regardless of you define it, in a report published last Friday, the EEOC says that it pursuing systemic discrimination as an enforcement priority to dismantle the pattern, practice, or policy that results in or facilitates discriminatory decisions.

What do these systemic policies look like, and what should you be on the lookout for in your business? The EEOC breaks them into four distinct categories.

1. Hiring/Promotion/Assignment/Referral
  • Criminal/credit background checks
  • Recruitment practices such as favoring or limited to word-of mouth
  • Tap-on- the- shoulder promotion policies
  • Steering of applicants to certain jobs or assignments based on race or gender
  • Historically segregated occupations or industries
  • Job ads showing preference ("young", "energetic", "recent graduate", "men only', "women only")
  • Customer preference
  • Algorithms to sort through applications
  • Personality or customer service tests; physical ability or capacity tests; cognitive tests
  • No rehire of retired workers or hiring of currently employed persons only

2. Policies/Practices

  • Mandatory religious practices by employers who do not qualify as religious organizations
  • Paternal leave policies that do not give the same benefits for men and women
  • Mandatory maternity leave
  • Fetal protection policies
  • English only rules
  • Age-based limits on benefits or contributions to pension or other benefits

3. Lay-off/Reduction in Force/Discharge policies

  • Mandatory retirement
  • Layoffs, reorganizations, and RIFs (disparate treatment and disparate impact based on a protected characteristic)
  • Waivers that may prevent employees from filing complaints or assisting the EEOC
  • Waivers that do not comply with the Older Workers Benefit Protection Act

4. ADA/GINA

  • "No fault" attendance policies
  • Non-accommodation for medical leave
  • Light duty policies for only work-related injuries
  • 100% healed return-to-work requirements
  • Pre-employment medical inquiries

Do your business a favor and audit your policies for any of these issues before they become a problem. 22 percent of the EEOC's active lawsuits raise issues of systemic discrimination, and in FY 2020, the EEOC recovered $69.9 million from employers in systemic cases (a more than three-fold increase from FY 2019). If these issues are on the EEOC's enforcement radar, you're doing your business and your employees a grave disservice if they aren't on your radar, too.