4 minute watch | December.20.2024
Join Erin Connell and Esther Lander to learn about:
Erin Connell: |
How is it that the EEOC initiates a systemic discrimination investigation? |
Esther Lander: |
Well, there are several ways, Erin. First, a charging party or an aggrieved individual can file a charge and allege class-wide discrimination. The EEOC may or may not investigate a systemic claim based on that allegation. The second way is the EEOC is investigating an individual charge and sees something through that investigation that triggers an expansion into a systemic claim. Lastly, each commissioner at the EEOC has the authority to issue what's called a commissioner's charge. A commissioner can issue a systemic charge based on something they read in the newspaper, or it could be based on a field office worker at the EEOC sending a letter to the commissioner requesting that the commissioner open a charge. It could even be a member of the public asking a commissioner to open a charge. |
Esther: |
So, Erin, you practice a lot before the OFCCP. How does the OFCCP initiate systemic investigations? |
Erin: |
When it comes to systemic discrimination and the OFCCP, OFCCP initiates the investigation through compliance evaluations, frequently referred to as audits. They conduct, it varies from year to year, but usually a few thousand audits a year. The process starts when the contractor receives what's called a scheduling letter and an itemized listing. It's the standard data and document request that starts any audit. When you get the scheduling letter and itemized listing, you only have 30 days to respond, which is not a lot of time to pull everything together. So, you want to pay attention because the OFCCP issues what's called a Corporate Scheduling Announcement List or CSAL. If you're on the CSAL, you want to start getting ready for the audit because you know what the request is going to be since it's an OMB-approved form and it is very burdensome. It’s hiring data, compensation data, applicant data, promotions data, terminations data, and now they're asking about policies and practices beyond that. Once you make your submission, that begins the investigation, and then the OFCCP will determine whether to continue from there. |
Esther: |
And when it comes to your California practice, what are you seeing at the state agency? How does the California CRD initiate an investigation? |
Erin: |
The CRD, the California Civil Rights Department (used to be referred to as the Department of Fair Employment and Housing, but they recently changed their name). They operate very similarly to the EEOC. They can either begin a systemic discrimination investigation because someone has filed a complaint, and then they may choose to expand it to a systemic discrimination investigation, or they can bring a systemic investigation on their own. In fact, just last week, we closed out a systemic discrimination investigation by the CRD with no adverse findings, which is really rare because typically the investigations are very broad. This one was very broad. It involved every kind of employment practice you can think of – hiring, recruiting, compensation, promotions, even terminations, job leveling issues, DEI – it was everything. The client was thrilled that it closed out because often the way these resolve is in some type of finding that then leads to a settlement, which can result in tens of millions of dollars in payments, and the settlements are public. So you want to avoid that if you can, and our client was really thrilled with the outcome. |
Esther: |
Congratulations. |
Erin: |
Thank you. |