What Must Be Proven in a Systemic Discrimination Lawsuit

At the federal level, the U.S. Equal Employment Opportunity Commission (EEOC) has the authority to sue Texas-based employers for acts of illegal employment discrimination. Many of these cases revolve around a single employee or small group of workers. But sometimes the EEOC may aim higher and accuse an employer of engaging in systemic discrimination. So what does this term mean exactly? And how can employers prevent—or defend against—such allegations?

Defining Systemic Discrimination

The EEOC itself defines systemic discrimination as any “pattern or practice, policy and/or class cases where the discrimination has a broad impact on an industry, profession, company or geographic location.” Essentially, systemic discrimination is more than just a single manager who fires an employee because they are female or Black. Instead, it refers to a situation where there is proof of widespread institutional bias against certain protected groups of employees or job applicants. Another way to look at systemic discrimination is that it creates an environment where certain categories of employees are more advantaged–or disadvantaged–than others, for reasons having nothing to do with merit or legitimate business interests. It does not necessarily matter how many people are in the affected group. The EEOC has held that systemic discrimination can impact small numbers of employees. Bryan P. Neal, an employment litigator at Thompson & Knight in Dallas, says some clients may not be aware just what systemic discrimination is—or, they believe it only applies to overtly discriminatory policies. “‘We only hire men for these roles, we only hire women for these roles’—sort of the Mad Men mentality,” he says. “When, in reality, systemic discrimination can arise in a lot of different ways. It can come up in hiring and promotion policies or practices because criteria that are being used have a discriminatory effect.”

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