On December 17, 2012, the EEOC released its Strategic Enforcement Plan. As previously reported, the EEOC released the draft SEP for public comment on September 4, 2012, with a plan to vote on and implement it by October 1. The more than two month delay suggests that the Commission reviewed the more than 100 comments to the draft and may have also been internally conflicted over portions of the draft (the Commission’s final vote was 3-1).
The final version maintains the key areas of national priority outlined in the draft SEP; however, it includes additional priorities, including age discrimination and equal pay issues. Thus, the final SEP identifies six key areas of national priority: (1) eliminating systemic barriers to employment in recruitment and hiring; (2) protecting immigrant, migrant and other vulnerable workers; (3) addressing emerging issues, including age discrimination, LGBT discrimination, and pregnancy accommodation; (4) enforcing gender-based equal pay laws through directed investigations and Commissioner Charges; (5) preserving access to the legal system by targeting retaliatory practices; and (6) preventing harassment through systemic enforcement and targeted outreach. The 15 District Offices are expected to supplement these priorities with District Complement Plans. In addition, the SEP promises to examine and update the Priority Charge Handling Procedures (PCHP) adopted in 1995 to ensure that meritorious priority matters receive greater attention and resources. The Commission has indicated that it will designate all charges raising one of the SEP or District Office priority issues as the highest category, with an emphasis on systemic charges.
The final SEP confirms that combating systemic discrimination will be one of the EEOC’s primary objectives for 2012-2016. In addition, in what appears to be a direct response to several embarrassing defeats on the merits and criticisms of the Commission’s investigative and conciliation practices, the SEP emphasizes improvement of its enforcement system and provides that even “[c]harges raising priority issues, as with all charges, should be dismissed as soon as the office has sufficient information to conclude that further investigation is not likely to result in a cause finding.”
Further improvement to the Commission’s enforcement system may be necessary, however. For a more detailed analysis of the final SEP and its practical implications for employers, stay tuned for our Law360 article to be published on January 15, 2013.