April 4, 2007

GOVERNMENT ATTORNEYS SAY SYSTEMIC DISCRIMINATION AND TESTING ARE KEY PRIORITIES

by Patricia A. Schaeffer, Vice President-Regulatory Affairs

Systemic discrimination and testing are key priorities for federal agencies enforcing federal EEO law, according to government attorneys speaking at the American Bar Association’s National Conference on Equal Employment Law on March 21. Participating in the panel discussion, which was moderated by management attorney David Fortney from Fortney & Scott, were Ronald Cooper, the EEOC’s general counsel; Jonathan Snare, the acting Solicitor of Labor, and Asheesh Agarwal, the deputy assistant attorney for civil rights.

EEOC:
Ronald Cooper said the EEOC’s most important initiative is systemic discrimination. The responsibility for this initiative rests with the 15 local EEOC offices, not in agency headquarters, although not all offices are pursuing it at the same level. Cooper also said that agency attorneys are moving to a national law firm model, and he predicted the EEOC is about one year away from seeing systemic litigation on a major basis. When asked whether testing would be part of the agency’s systemic discrimination program, Cooper said the agency planned to hold a hearing on testing on May 16th.

Department of Labor:
Jonathan Snare said his office works closely with the OFCCP to develop national cases against federal contractors, which he said results in a “bigger bang” for the resources expended. Referencing Richard Fischer, OFCCP’s testing expert, he said that DOL is specifically looking at the testing procedures used nationwide by particular employers. Snare also discussed the OFCCP’s systemic compensation discrimination guidelines as another example of their emphasis on a systemic approach towards enforcement.

Department of Justice:
Asheesh Agarwal said systemic discrimination has always been a focus of the department in its enforcement of Title VII against public employers, and the Civil Rights division has frequently focused on testing issues.

Implications for Employers:
The government lawyer panel section is a regular feature of each year’s ABA National Conference on EEO Law, and it is a particular favorite of mine. The major takeaway from this year’s panel session was the announcement that the EEOC plans to hold a hearing on its testing initiative on May 16th. I believe this hearing potentially has major implications for employers.

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