The U.S. Equal Employment Opportunity Commission (EEOC or Commission) recently released to the public its draft Strategic Enforcement Plan (SEP or Plan). The SEP will take effect October 1, 2012, and will remain in effect until September 30, 2016, or until a new SEP is approved by the Commission. Below is a summary of the SEP and what employers should know about it.
I. SUMMARY OF THE EEOC’S NEW PLAN
The Plan establishes priorities for the EEOC and integrates all components of the EEOC’s private, public, and federal sector enforcement. These enforcement components include the Commission’s investigation, conciliation, and litigation responsibilities; its remedial power and oversight responsibilities in the federal sector; its research and policy development activities; and its education and outreach efforts.
The guiding principles set forth in the SEP are:
To take a targeted approach. This will mean focused attention on a clearly identified set of issues and implementation strategies. Taking a targeted approach shifts the enforcement paradigm from complaint-driven to priority-driven and will provide agency personnel with guidance regarding the appropriate allocation of available resources.
To take an integrated approach. An integrated approach recognizes that, where possible, enforcement in all three sectors (private, state and local, and federal government employers) should be coordinated and consistent.
To have more accountability. The SEP sets forth standards for communicating with the Commission, exercising its statutory responsibilities, and ensuring that a strategic, integrated, and consistent enforcement approach is carried out.
For employers, the first two guiding principles are of the most interest.
As to targeting, the Commission identified priorities for national enforcement based on the following criteria:
Issues that will have a broad impact because of the number of individuals or employers affected;
Issues involving developing areas of the law;
Issues affecting workers who may lack an awareness of their legal protections, or who may be reluctant or unable to exercise their rights;
Issues involving discriminatory practices that impede or impair full enforcement of employment anti-discrimination laws; and
Issues that may be best addressed by the EEOC given its access to data and research.
Priorities to be Targeted
Nationwide priorities of the EEOC include:
1. Eliminating systemic barriers in recruitment and hiring. The EEOC will target class-based hiring discrimination and facially neutral hiring practices that adversely impact particular groups.
2. Protecting immigrant, migrant, and other vulnerable workers. This includes disparate pay, job segregation, harassment, trafficking, and discriminatory language policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
3. Addressing emerging issues. The EEOC anticipates swift and responsive attention to various events (an example includes the 9/11 attacks), recently enacted legislation, and developing judicial and administrative interpretations. The EEOC states that it will target:
a. ADA Amendments Act issues (coverage issues and the proper application of ADA defenses, such as undue hardship, direct threat, and business necessity);
b. LGBT (lesbian, gay, bisexual, and transgender individuals) coverage under Title VII sex discrimination provisions; and
c. 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. The EEOC will target practices such as retaliation; overly broad waivers; settlement provisions that prohibit filing charges with the EEOC or providing information in EEOC or other legal proceedings; and failure to retain records.
5. Combating harassment. This includes a continued effort to combat harassment on the basis of race, color, sex, ethnicity, age, disability, and religion.
As to the second guiding principle, i.e., the integrated approach, the EEOC will implement the following changes:
Priority charge handling procedures (PCHP) implementation. Charges of discrimination raising any SEP or district priority issues shall be initially designated as “Category A” charges. In the near future, individual disability, harassment, and retaliation charges (formally the highest priority among Category A charges) should only be categorized as Category A charges under the following circumstances: 1) if they present strong vehicles for development of the law; or 2) where further investigation will probably result in a cause finding and irreparable harm.
Litigation program. Meritorious cases raising SEP or district priority issues should be given precedence in litigation recommendations.
Systemic program. Systemic cases (such as pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, occupation, business, or geographic area) will be targeted.
II. TAKEAWAYS FOR EMPLOYERS GIVEN THE EEOC’S PLAN
The EEOC is focusing its efforts on what it perceives to be industry-specific violations, such as those which use migrant workers. It is also focusing on the protection of particular classes of employees such as disabled, LGBT (lesbian, gay, bisexual, and transgender individuals), and pregnant employees. Additionally, the EEOC is poised to challenge employer’s records, including the retention of such records and the language contained in severance or settlement agreements in the interest of preserving an employee’s access to the legal system. Finally, it appears that retaliation claims will continue to make up a significant part of all EEOC charges, and the Commission is committed to investigating and enforcing such claims.
Helen A. Palladeno is a shareholder in the Tampa office of Ogletree Deakins.