Warning Signs that an Individual EEOC Charge Could Become a Class Action
Posted at Arkansas Employment Law by M. McClure on 01/16/2010

Warning signs that the EEOC is targeting your businessThe EEOC has watched the OFCCP collect millions from employers by pursuing claims of systemic discrimination in the employers' hiring processes.  The OFCCP uses statisticians and testing specialists to uncover statistical evidence of discrimination, and this strategy has been remarkably effective for the agency. 

For the last few years, the EEOC has worked to expand individual charges into class claims, particularly in the area of failure-to-hire claims.  The EEOC will closely scrutinize any barrier to hire that the employer puts in place, such as a pre-employment tests, drug screens, or background checks. You will know that you are in the EEOC's systemic discrimination cross hairs if the EEOC issues a Request for Information (RFI) with an individual charge that requests information regarding:

  • Validation studies for pre-employment tests.
  • Hiring policy information for positions unrelated the charging party's position.
  • Background check vendors or policies.

While failure-to-hire claims are the low hanging fruit, the EEOC also looks for class claims that can be based on other seemingly neutral policies, like compensation policies. For example, if EEOC begins asking for pay data that is unrelated to the individual charge, that's a good sign that the EEOC is looking to expand the investigation outside of the individual claim. Attorneys will object to these requests as irrelevant to the charge, but the EEOC's investigative authority is broad.  The Second Circuit recently upheld the EEOC's right to subpoena nationwide records in a charged filed by an individual.  

An employer's best defense to this EEOC strategy is to get your house in order before the EEOC knocks on the door. Federal contractors who have to answer to the OFCCP are familiar with this approach and conduct self-evaluations to determine whether the company has any existing risk.  It's better to address these issues internally before a federal agency does it for you.