Defensible Decisions: EEOC’s Pattern-or-Practice Priorities and What Employers Should Expect

Announcer: Welcome to the Ogletree Deakins podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.

Scott Kelly: Hello, everyone. Thanks for joining us today, and welcome to Defensible Decisions. I’m your host, Scott Kelly. Let’s turn law and analytics into actions that withstand scrutiny. I’m joined today by my colleague and a shareholder in our Phoenix office, Nonnie Shivers. Nonnie is also the co-chair of the firm’s Diversity, Equity, and Inclusion Compliance practice group.
Today, we’re going to spend some time talking about the fact that the EEOC now has both a practical and a technical quorum, and there have been some recent statements by Chair Lucas and others around what that might mean for employers, particularly as it relates to the agency engaging in some systemic or pattern in practice enforcement, investigations, and eventually some litigation. So, with that, I’d like to get us started and welcome, Nonnie, to Defensible Decisions.

Nonnie Shivers: Yeah. So, it’s been a busy week, even with the government shutdown, Scott. Everything is certainly back in full force. And I know clients listening may have already started to see the very granular impact, which is EEOC charges flowing once again with deadlines, invitations to mediate, and the like. But let’s take a step back from that, which is we now have a practical quorum at the EEOC. So, what do I mean by that? There was a technical quorum, but we hadn’t had people sworn in. Now we have two Republican commissioners, Chair Lucas and Brittany Panuccio, both confirmed, both ready to roll. And Andrea Lucas was acting chair, and she’s now been officially appointed into the role and serving as chair. So, we’ve got the full quorum.

Now, what that means in practicalities, again, based on it being a practical quorum, is that the wide variety of things that might have been happening behind the scenes, we were seeing commissioner’s charges, which are inherently by statute private, but now we’re going to see the things that a quorum had to exist in order for the EEOC to take action on. Revised guidance, drawn back guidance, and lawsuits. And it’s been very clear based on recent public commentary from Chair Lucas. There was a recent meeting at the Federalist Society in a variety of other spots that that pattern and practice systemic litigation you mentioned, Scott, that’s what’s on the way.

Scott Kelly: That’s right. And one thing I want to point out is with Lucas’s elevation or promotion to chair, a couple of other kind of housekeeping notes. When Commissioner Panuccio was confirmed by the Senate at the same time, I believe in the same vote, Andrew Rogers, who was acting general counsel at the EEOC, who had been responsible since the Trump administration took over at the beginning of 2025 for litigation, which there has been litigation. I would say it wasn’t a heavy litigation year, and that’s not altogether atypical for new administrations. It takes a while to get people plugged-in into the different roles for the quorum that you discussed to get into play. But the acting general counsel was confirmed to a role within the wage and hour division at the Department of Labor. And so, that leaves the general counsel role vacant.
But interestingly, right before the shutdown, there was a move from the OFCCP. The director that had been in place there, her name’s Catherine Eschbach, had been there since March of this year. She came from a management side defense law firm and had been an appellate lawyer there; she was at the helm of OFCCP until the end of, I think, September or October…I can’t remember the exact time…and then was put into a litigation role at the EEOC, but it is not the general counsel role.

But it’s been clear by publications, at least in press and different statements that have been made, that she’s going to be shaping the litigation strategy, I assume, while the administration decides who to nominate for that general counsel role. So, still a little bit more to shake out there in the way of who the players are, but I think it was clear from the statements that we read about in the press that Commissioner Kotagal and Chair Lucas have made just recently, that they are intending to move forward with probably, or to expect, for employers to expect some changes on the policy front, but also in the way that they’re going to start focusing in on the Trump administration’s priorities. And Nonnie, can you give us just a reminder on what those big priorities are, kind of the America’s first or the administration priorities that the EEOC is going to help advance?

Nonnie Shivers: Yeah. And I think it’s important to understand that the EEOC strategic enforcement plan, typically a multi-year plan, really is a guide to what will be acted upon and what key issues are that have been identified by the agency, that that certainly isn’t what’s being adhered to. And what really is happening is now that Chair Lucas has said she was wrong in the past, and the EEOC is not an independent agency, but an executive agency, this alignment with the administration’s policies is very clear. So, we know that amongst the top five priorities that the administration has elucidated, and the EEOC is certainly pursuing, are race and sex-based preferences, or that’s the DEI side of the house, anti-American bias would be one of the others. The third and one of the most important, of course, are the immigration type of issues, abusive H-1Bs, which goes hand-in-hand with the anti-American bias.

Now, one of the interesting things that comes from some of these priorities, and there are a few others, of course, including the attacks on LGBTQ issues in the workplace focused on transgender rights, as well as bathrooms, pronouns, and the like. That isn’t the purpose of today’s webinar, but certainly something we’ve talked about recent webinars. One of the, I think, priorities that these come from is Executive Order 14281, Restoring Equality of Opportunity in Meritocracy. And the reason I think that’s important to talk about today is that’s where the administration came out and said disparate impact is fundamentally dead to the administration despite it being baked into federal statute and case law from the Supreme Court. And the EEOC has definitely fallen in line with that and focused very much on not disparate impact, but pattern and practice systemic litigation from a disparate treatment perspective. And so what we expect to see, to drill down on this a little further, and again, it’s all our crystal balls, is like we’ve seen in the past with ADA cases. That was where we saw disparate impact and disparate treatment on classified bases come from the EEOC, and that’s particularly true in the Phoenix District Office of the EEOC, where there were significant conciliation and consent decrees to the tune of millions of dollars, over 100% healed policies and the like, we may still see those ADA cases, but with the new priorities, where we’re likely to see those is on race and sex-based preferences, quotas, and anything that looks, sounds, or smells like a preference or quota type of program. So, for instance, the attacks on anything that would look at a diverse slate or a diverse panel, those may be things that we could anticipate seeing in the future that would fall squarely within these enforcement priorities and within the administration’s executive orders, giving that policy direction to the EEOC, Scott.

Scott Kelly: Yeah. I think your comment about us kind of crystal balling or kind of reading tea leaves of what to look for, I think, it is the right way to say it, but we also aren’t doing this just out of thin air. I mean, and I would like to point our listeners to the EEOC’s fiscal year 2026 congressional budget justification. You can find that, if you just want to search it up, as my 17-year-old would say, on the internet. And there, in it on page 20, there is a narrative talking about the importance of the systemic program. Unless you’re living with your head in a hole, you would know that one of the focuses of the government has at least been articulated to try to cut through some of the pork that’s out there, make sure that everything is as efficient as possible.
I found it interesting in this budget justification that the money that they are asking for to be allocated to their systemic enforcement or pattern and practice enforcement remained at the same levels as we’ve seen in the prior year budgets. And that, just to kind of tie this all together with the budget, the continuing resolution that was voted on and signed by President Trump the last week of October, we’ve got the government open until January at least.

And so, EEOC is getting the funds that it asked for for the systemic investigation. And reading from that, it talks about what systemic investigations are, and those are defined in that document as large and often complex discrimination charges that have a potential impact to make a broad impact, not only on a particular organization, but really more upon a whole industry, a whole profession, or a geographic location. And they say it’s mission-critical because it’s efficient and effective to bring about the changes in the workplace that the EEOC is looking to bring to prevent discrimination more of on a large scale. They want to stop these big things from happening. It’s an efficient use of taxpayer money to do that. And it talks a lot about the money that has been recovered. So, to quantify a little bit, for fiscal year 2024, now admittedly, that would have been in the midst of the Biden administration. The focus there was going to be a bit different than what you heard Nonnie just talk about, but they recovered a lot of money. We’re talking in the millions, about 25, almost $26 million over the course of 369 systemic investigations. There was another almost $24 million, it was actually $23.9 million recovered by the EEOC when they resolved 16 systemic lawsuits. So, if you look at that, I mean, we’re getting close to almost $50 million in recoveries as part of the systemic investigations and in litigation. And then in the budget justification, it goes on to talk about how this systemic team is going to be the front line of course, at that point, the acting chair’s focus on the multiple administration policies that Nonnie just took us through. A couple of the examples, they said that these DEI cases and this budget justification are systemic by their nature because they involve patterns or practices of intentional discrimination involving that race or gender-based, or company, or industry-wide programs, policies, or initiatives. Interestingly, it talks about protecting American workers from anti-American national origin discrimination using successful systemic investigations, particularly looking at preferences for Hispanic workers and other foreign workers at the expense of large multiracial groups of American workers.

So, we know that they’ve got the money. The question is do they have the staff? Because we know with a lot of the layoffs and the different changes, that there have been reports by different media outlets that they just don’t have the staff that they had before. But based upon these comments, what do you think employers need to be looking out for, Nonnie, as far as kind of the next thing? Do you think there’ll be more charges brought, more systemic or pattern and practice type charges? Do you think that’ll be something that the chair and the different commissioners will use the commissioner charges as a vehicle for? Or do you think it’ll be more in the field, the investigative field where these field offices are going to be looking at the types of charges that they’re seeing, and potentially looking to see if there’s some kind of common practice that could get them to the pattern and practice type inquiry?

Nonnie Shivers: All good questions, Scott, because pattern and practice and systemic claims, when based on disparate treatment, they may not be as difficult to unpack as disparate impact. There’s long been misunderstanding, misconception. It’s a more sophisticated type of argument, right? And you have to have a neutral practice, that’s the initial confusing stance. Disparate treatment, as we know under recent Supreme Court authority, what an adverse action is and what can lend itself or substantiate disparate treatment or lead to an investigation has been, the bar has been lower.

And so first, I think that we’re going to see that budget spend go towards AI and data analysts. I think we’re going to see investment in the ways that data can be crunched in today’s environment. So, my number one thought is employers need to be prepared to have their data, and be prepared to do data analytics of their own, and preferably privileged analyses that we’ve been doing to analyze workplace barrier analysis, to do that analysis, and to be ahead of the game.

But to your direct question, what I believe the alignment will look like is we’re going to continue to see commissioner’s charges, I believe. And, of course, those—unless they’re leaked, which has happened despite being a violation of the law—we believe those to be occurring for sure. And those can be incredibly expensive, incredibly difficult to negotiate depending on the nature of the allegations, which are typically quite broad, right? They don’t have to have an aggrieved individual, unlike a consent decree or a systemic case.

So, one, I think we’re going to see commissioners gardens continue because they are a powerful vehicle. We’ll continue to see CIDs and CID letters and investigations by the DOJ, and under an MOU, or just collaboration, we’ll continue to see that, especially potentially vexing federal contractors and money recipients. Where I really think the rubber’s going to hit the road though is that the field offices were already being asked to, based on the reports, being asked to align their efforts with the administration’s policies, not the strategic enforcement plan that was approved by the commission. So, they were asked in field offices to identify cases that most aligned or would be the ones to pursue to pursue these federal policy priorities that the EEOC has now adopted under the leadership of Chair Lucas. So, we’re going to see that further alignment in the field offices. And we already had systemic investigators or leaders in different field offices, but when we converge the two and say, “So which cases would be likely to support these policy objectives?” And then we have the funding to modernize that, I think that’s exactly where this is going to go, and we’re going to see it along the lines of the administration’s very clear priorities.

But Scott, if you agree that data analytics is something employers should be doing on a privileged basis, right now, it may be a wait-and-see attitude, but is there anything you think employers should be doing with their data? I mean, there’s even questions about whether we should continue to collect data at this point, given how aggressive some of the agencies and leaders have been in saying, “Data’s dangerous.” So, what are employers to do, or what can they do?

Scott Kelly: Yeah. I mean, to me, I think the most sound approach that employers can take at this point is really looking at how do you leverage kind of your legal readiness with some data-driven insights. I think you need to be looking at your decision making and auditing it. And to make sure that any of your policies or practices aren’t creating any legal risk, I think the importance of doing that under privilege is paramount to undertaking that in a careful manner. I think, though, to address the concern that you raise of, and I would say there’s definitely a lot of paralysis of analysis out there, and I think that employers need to kind of shake that off a bit. There has been, I would say, somewhat mixed messages from the administration. On the one hand, it’s saying that data collection, as you mentioned, could be dangerous. I think the full story of that, if you don’t use it appropriately, and I think most or all employers definitely that I work with, use it for the intended legal purpose. You have the EEO-1 report requirement that allows you to solicit sex and gender information from your employees post-offer. So, if you have that information, I think the applicant collection is a prudent thing. Of course, all of this depends upon your particular organization. But especially with the AI bias auditing needs that are out there, I think there’s a compliance mandate for that now, in my opinion, and be on the lookout for more podcasts on that particular issue from me and Lauren Hicks; we’ve got one that we are working on getting out in the coming days.

But I think that employers would really be up against a wall that you wouldn’t want to be up against if you weren’t collecting that data, and you weren’t analyzing it to see if you had any problem. I think that seeing and solving under legal counsel’s umbrella of protection, what your issues are there, is really important. But also understanding what it is you’re trying to test. If you have selections, are you looking at your external selections, making sure you’re not mixing that too much with your internal selections, making sure you’ve got the documentation to support the reasons that the company has relied upon in making those decisions, particularly with this administration’s focused on merit-based or skill-based hiring and away from what it I think is insinuating in the past may have been happening. I don’t believe this was happening, but I think that the narrative, certainly from the administration, that a lot of decisions were made based upon protected characteristics.

So, to find out if that was happening, the best way in my mind to do that is to audit your practices. And I would go back probably the last 12 or so months, looking at the impact that your decisions have made on the organization, determine if there’s legal risk, and then figure out what mitigation might be necessary to kind of remedy that. That doesn’t necessarily mean that there’s any remediation that would be required. It’s really looking at, are there blind spots? Like you mentioned, Nonnie, barriers to equal employment opportunity. So, if we notice that a particular talent acquisition professional continues to screen out certain individuals based upon…and we see themes or trends in that, perhaps some spot training might be appropriate. There could be some documentation issues that you could address. There could be something within your job architecture. Maybe you haven’t updated your minimum or basic requirements and preferred requirements for a job, and maybe you’re using some kind of generic ones for those instead of tailoring them to a particular position.

I know a lot of emphasis, and I’ve even fallen into my own trap here at talking a lot about selections, but I think this pertains to really anything that goes on within a workplace that you’re measuring or that you have data that you can measure. So, sometimes in the traditional sense, we think about selections that can be internal or external. You think about transfers potentially in light of the Supreme Court’s decision in Muldrow that allows for transfers. If there’s any kind of harm that potentially could be actionable under Title VII now, terminations, but then even things like performance that’s going to have a big impact and a lot of meritocracies on who’s going to get promotions or what type of merit or other type of compensation changes you could get.
We’re also working with a lot of employers to look at their workplaces and how their pay practices surround both their non-visa workforce versus their visa workforce in the same type of roles, that’s been some interesting work we’ve been doing recently. Along with looking at things like accommodations, especially we’re seeing an uptick on requests for accommodations under a religious theme and the disability accommodations are certainly still out there with the return-to-work demands that we’re seeing kind of coming across. There are ways that we could use employer data to help test out if there’s any type of risk associated with that as well.
Nonnie, can you think of any other ways that we could be leveraging data to help our employer clients make sure there’s not risk?

Nonnie Shivers: I think you hit it, Scott. I think the important thing to consider is not to run scared on these, that your data is an important avenue for you to continue to really enhance the work experience for individuals to ensure you get the applicants you need in one. And we need to retrain as you noted, but honestly, I think you’ve captured well why you want to continue to do those privileged analytics.

Scott Kelly: All right. Well, thank you for joining me today, Nonnie. I really appreciate it. I think for the takeaways, I would say that this restored quorum by the EEOC is really going to kind of usher in a new phase of systemic enforcement aligned with the priorities of this Trump administration, and that’s likely to test some employers’ practices. So, we would definitely say that if you’re looking at how to get ahead of it and not be reactive, engaging in these privileged analysis or analytics to ensure that all your decisions are merit-based and supported by documentation are going to help you be better positioned to withstand the scrutiny and hopefully avoid litigation. But if you happen to have to deal with litigation, it’ll allow you to kind of be better prepared for those claims when they do arrive.

Announcer: Thank you for joining us on the Ogletree Deakins podcast. You can subscribe to our podcast on Apple Podcasts or through your favorite podcast service. Please consider rating and reviewing so that we may continue to provide the content that covers your needs. And remember, the information in this podcast is for informational purposes only and is not to be construed as legal advice.