[author: David L. Woodard]
On September 4, 2012, the Equal Employment Opportunity Commission released its draft Strategic Enforcement Plan (SEP). While only a draft, the SEP reveals, among other things, what the Commission’s enforcement priorities for the next few years.
The guiding principle stated for the SEP is the belief that “targeted enforcement efforts by the Commission will have the broadest impact to prevent and remedy discriminatory practices in the workplace.” The Commission’s definition of a targeted approach is “focused attention on a clearly-identified set of issues and implementation strategies.” This means that the Commission has identified several categories of charges that will receive priority treatment in allocation of resources and, presumably, order of investigation.
Employers will, of course, be interested in the categories of charges the Commission has identified for priority treatment and therefore more aggressive investigation and prosecution. Those categories, as described in the draft SEP, are as follows:
Eliminating Systemic Barriers in Recruitment and Hiring
The EEOC will target class-based intentional hiring discrimination and facially neutral hiring practices that adversely impact particular groups.
Barriers specifically identified by the Commission under this category include restrictive application processes and the use of screening tools (e.g., pre-employment tests, background screens, date of birth screens in online applications) that adversely impact groups protected under the law. Employers will recall that the Commission issued guidance on the use of criminal background checks earlier this year, which will likely play a role in the Commission’s enforcement efforts under this category of charges.
Protecting immigrant, migrant and other vulnerable workers
The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory language policies affecting these vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
With regard to pay disparities, the Commission reportedly is considering ramping up its own direct investigations – meaning that employers might see the Commission attempting to initiate an investigation into an employer’s pay practices even where no charge of discrimination has been filed.
Addressing Emerging Issues
The EEOC will continue its efforts to address emerging employment issues in the nation's workforce.
The current emerging issues identified in the SEP are:
ADA Amendments Act issues, particularly coverage issues, and the proper application of ADA defenses, such as undue hardship, direct threat, and business necessity;
LGBT (lesbian, gay, bisexual and transgender individuals) coverage under Title VII sex discrimination provisions, as they may apply;Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.
Preserving Access to the Legal System
The EEOC will also target policies and practices intended to discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC's investigative or enforcement efforts. These policies or practices include retaliatory actions; overly broad waivers; settlement provisions that prohibit filing charges with EEOC or providing information in EEOC or other legal proceedings; and failure to retain records required by EEOC regulations.
The Commission notes that retaliation constitutes its largest category of charges. Aside from the normal investigation and prosecution of these charges, the Commission states that it will focus on outreach and education efforts under this category.
For many years, the EEOC has focused administrative and enforcement efforts to curtail workplace harassment on the basis of race, color, sex, ethnicity, age, disability and religion. Nevertheless, these practices - often the most pernicious and direct - persist. As with retaliation, it is therefore necessary to re-evaluate our strategies to be more effective, including refocusing our efforts on a national education and outreach campaign aimed at both employees and employers, many of whom struggle with how to prevent and appropriately respond to harassment in the workplace.
Although the SEP is currently in draft form, it is doubtful that Commission’s priority categories will change significantly. Having been provided notice of the Commission’s primary areas of focus for the coming years, Prudent employers should review any policies and practices that fall under the identified categories and to seek legal counsel for any concerns that are identified. An ounce of prevention now could help avoid a long and costly dispute with the Commission in the months and years to come.