It was only a matter of time, but it has happened. In a letter received recently the EEOC advised it was expanding a single charge alleging disability discrimination, into include the non-alleged issue of nationwide class discrimination in hiring. (See actual letter below).
What?! Non-Alleged??! Nationwide? Yes, you read that correctly. The EEOC unilaterally took a single plaintiff EEOC charge and turned into a nationwide systemic discrimination investigation based on the employer’s use of a nationwide online assessment tool.
What in the world is going on?!?!
The EEOC just approved its Four Year Strategic Enforcement Plan in which it identified as its top enforcement priority for the next four years
“ the elimination of systemic barriers in recruitment and hiring.”
Given EEOC’s focus on systemic discrimination the Agency is going to look at every opportunity to turn routine charges of discrimination into systemic cases, just like it did in the above case, and to bring in large financial settlements as a result.
If you use an online assessment tool, you may find yourself right in the EEOC’s “sweet spot” and can expect the next single charge involving hiring to trigger a class-wide investigation. Do not rely on a vendor’s statement that the assessment tool has been validated to ensure consistent application. Such a validation is generic and is not for its specific use by you. Assessment tools must be validated for your jobs specifically.
Taking EEOC’s laser-like focus on employer hiring practices into consideration with OFCCP’s focus on applicant-to-hire adverse impact, means, now, more than ever, employers must evaluate their pre-employment and hiring processes to identify potential discrimination and to ensure that hiring policies and practices are consistently applied and tracked.