[author: Scott T. Silverman]
On September 4, 2012, the EEOC issued a draft of its Strategic Enforcement Plan ("SEP") for public comment. The EEOC identified the following nationwide priorities: (1) eliminating systemic barriers in recruitment and hiring by targeting class-based intentional hiring discrimination and facially neutral hiring practices that have an adverse impact; (2) protecting immigrant, migrant and other vulnerable workers from disparate pay, harassment and other discrimination; (3) addressing emerging issues, such as the ADAAA, LGBT coverage under Title VII, and pregnancy accommodation when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees; (4) preserving access to the legal system by examining retaliatory actions, overly broad waivers, settlements that prohibit the filing of charges or providing information to the EEOC, and failure to return records required by EEOC regulations; and (5) combating harassment through an education and outreach campaign.
To implement these priorities, the EEOC will institute a Priority Charge Handling Procedure, in which charges raising SEP issues will be designated as Category A charges, with the exception of individual disability, harassment and retaliation charges. Due to their volume, these latter charges will be categorized as A charges only if they "present strong vehicles for development of the law."
As some may recall, a Category A charge will not be referred to mediation, but will be sent to the investigation unit. SEP charges will be given the highest priority of A charges. Once an assessment of the merits of a SEP charge has occurred, it will receive increased attention and resources to ensure timely enforcement action. During the investigation, offices are to re-evaluate the "A" designation and recategorize as needed.
In addition, meritorious cases raising SEP issues will be given precedence in litigation recommendations and selection over non-priority cases. The EEOC has not set a definitive number of cases that it will seek to file. Systemic cases that raise pattern or practice, policy and class action issues where the alleged discrimination has a broad impact on an industry, occupation, business or geographic area will be given the highest priority among SEP matters.
Employers need to be sensitive to these EEOC enforcement priorities in development of their policies and procedures.
Any comments to the SEP must be submitted by 5:00 pm ET on September 18, 2012 at email@example.com or received by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507.