EEOC Doesn’t Need Individual Charge to Launch Probe

The Equal Employment Opportunity Commission (EEOC) recently published a new webpage reminding us of its authority under certain circumstances to launch a discrimination investigation even without receiving a charge from an employee or other private party.

Indeed, Congress expressly authorizes the commission (meaning its five-member governing authority) to issue a “commissioner charge” when it believes an employer is engaging in discriminatory employment practices in violation of three of the laws it enforces: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the employment provisions of the Genetic Information Nondiscrimination Act (GINA).

How Commission Charges Work

Under Title VII, the ADA, and GINA, individuals generally must exhaust all administrative remedies by filing a discrimination charge with the EEOC before they will be allowed to file suit in federal court. Just as an individual (or an agency or organization acting on an aggrieved person’s behalf) may file a charge accusing an employer of discriminating based on race, color, religion, sex, national origin, disability, or genetic information, so too may the EEOC approve and file a Title VII, disability, or genetic discrimination charge in its own name.

Thus, EEOC investigations of claims filed under Title VII, the ADA, or GINA are charge-driven. In other words, other federal watchdogs such as the Office of Federal Contract Compliance Programs (OFCCP) have general audit authority over a covered employer’s equal employment opportunity (EEO) practices, but the EEOC’s power to investigate alleged discrimination under the three laws stems from, and is generally limited to, the four corners of a valid, written charge.

As for the Age Discrimination in Employment Act (ADEA) and the Equal Pay Act (EPA), the agency may initiate an administrative (or “directed”) investigation without a written charge or even an identifiable victim.

The EEOC’s new website content explains how agency-initiated charges are filed, investigated, and resolved. It explains, for instance, that a commissioner charge or directed investigation most often comes about as a result of:

• An EEOC field office learning about possible workplace discrimination via “direct observation, from local community leaders, advocacy groups, and [fair employment practices] partners, or through the sharing of information between the EEOC and the U.S. Departments of Justice, Labor, and other federal agencies”;
• The agency learning during the course of an existing investigation about “one or more new allegations of discrimination” unrelated to the matters raised in the underlying charge “that could be better investigated through a Commissioner charge or directed investigation filed by another EEOC office”; or
• An individual commissioner coming to learn about or suspect possible workplace discrimination and “[asking] a field office to investigate the allegations.”

Although the EEOC exercises its commissioner charge and directed investigation authority relatively infrequently compared to the total number of charges filed and investigated each year, you should note the potentially powerful administrative tools exist and are at the agency’s ready disposal.

Commissioner Charges Can Be Costly to Defend

The EEOC uses commissioner charges most often to go after suspected systemic or pattern-or-practice discrimination affecting broad classes of individuals (as opposed to a single aggrieved person), which increases the scope and complexity—and raises the financial stakes—of responding to and defending them.

Indeed, the agency considers commissioner charges to be among the types of cases, once in litigation, “that may involve a major expenditure of agency resources, including staffing and staff time, and/or expenses associated with extensive discovery [pretrial fact-finding] or expert witnesses.” As the agency observed in its 2006 Systemic Discrimination Task Force Report:

EEOC has a unique ability to identify potential systemic cases. The agency has access to substantial data, including information on employment trends and demographic changes, that can help identify possible systemic discrimination. This data gives EEOC particular insight into areas such as hiring discrimination, where victims of discrimination often are not aware that they may have been denied employment based on unlawful criteria. Such information, combined with the Commission’s ability to use . . . a Commissioner Charge . . . where a possible victim of discrimination has not filed a charge, provides EEOC with the crucial tools needed to uncover systemic employment discrimination.

Thus, especially given their public interest and class-based nature, commissioner charges are the very kind the EEOC may be inclined to pursue in litigation if an investigation finds reasonable cause but no settlement “acceptable to the commission” can be reached.

For example, in a 2018 public enforcement action that was filed after the investigation of a commissioner charge, the agency alleged a manufacturing company failed to hire women into certain entry-level positions and subjected “the few women hired into other positions” to sex-based harassment. The case, filed on behalf of a 50-person class, quickly settled for approximately $625,000.

Worth noting: Unlike private litigants, the EEOC isn’t bound by federal rules governing class certification, adding greater risk and uncertainty to the prospect of having to defend a class-based EEOC lawsuit filed in federal court. For that reason, it may be well worth the effort to conduct a periodic personnel practices “self-audit,” which may reveal gaps or issues that if left unresolved could lead to potential systemic issues.

Take Steps to Minimize Risk of Directed Investigation

Both the ADEA and the EPA permit the EEOC to investigate suspected age discrimination or sex-based compensation discrimination, even in the absence of a filed charge. Any number of employment practices could give rise to a directed investigation:

• Limiting job opportunities for older workers by considering only “recent college graduates” for entry-level job openings;
• Using age-based data algorithms or “keyword” searches to screen job applicants;
• Soliciting and tracking applicant date-of-birth information; or
• Paying men a higher starting salary than women hired to perform the same or substantially the same job.

Here are some strategies you can use to avoid the above issues:

Avoid unintended bias. Train your talent acquisition staff on how to avoid unintended bias in the recruitment and hiring process. Missteps in how applicants are vetted, seemingly innocuous questions contained in an online application system, or other aspects of the process could disadvantage applicants of a particular protected group—such as those over age 40—or be perceived as such by an agency investigator who decides to “test” the process by submitting an “application.”

Hold managers accountable. Be sure they’re ensuring the talent acquisition staff is following the rules and that they’re regularly reviewing how job applicants are being screened and advanced.

Review your policies. Make sure they don’t contain language or requirements that could be construed as biased or lead to disproportionately unfavorable outcomes for certain protected groups.

Rae T. Vann is a shareholder with Carlton Fields in Hartford, Connecticut, and Washington, D.C. You can reach her at rvann@carltonfields.com.

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