The Equal Employment Opportunity Commission ("EEOC")
approved its highly anticipated Strategic Enforcement Plan, or
"SEP," on December 17, 2012. The SEP reaffirms EEOC's
continuing commitment to class and systemic discrimination
investigations and litigation; announces a new and unprecedented
focus on lesbian, gay, bisexual, and transgender cases; highlights
the Commission's focus on expanded protections for disabled and
pregnant individuals; targets employers' use of background
checks and criminal history to make employment decisions;
identifies other facially neutral practices upon which EEOC plans
to focus; and delegates nearly all of the Commission's
litigation authority to the EEOC's general counsel and 15
regional attorneys.
The SEP establishes six national priorities for enforcement across
the Commission's headquarters and its 53 district, field, area,
and local offices. The Commission claims that its national
priorities involve issues that affect large numbers of individuals,
employers, or practices; relate to developing areas of employment
law; affect workers unaware of or reluctant to exercise their legal
rights; involve discriminatory employment practices that interfere
with enforcement of antidiscrimination laws; and are suited to
government enforcement due to the Commission's access to
information, data, and research.
- Eliminating Barriers in Recruitment and Hiring. EEOC will target systemic intentional discrimination in recruitment and hiring, as well as facially neutral recruitment and hiring practices that adversely affect individuals on the basis of race, ethnicity, religion, age, gender, or disability. Of particular interest to EEOC are exclusionary policies and practices that include channeling members of certain groups into specific jobs, restrictive application processes, and the use of screening tools such as pre-employment tests, background checks, and questions regarding dates of birth.
- Protecting Immigrant, Migrant, and Other Vulnerable Workers. The Commission will also target discriminatory practices and policies affecting immigrant, migrant, and other vulnerable workers, such as disparate pay, job segregation, harassment, and trafficking.
- Addressing Emerging and Developing Issues. EEOC will address trends and developments in the law including, but not limited to, (i) Americans with Disabilities Act issues such as coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat; (ii) accommodations for pregnancy-related limitations under the Americans with Disabilities Act Amendments Act and the Pregnancy Discrimination Act; and (iii) coverage of lesbian, gay, bisexual, and transgender individuals under Title VII "as they may apply."
- Enforcing Equal Pay Laws. EEOC will encourage directed investigations and Commissioner charges to target compensation systems and practices that discriminate based on gender.
- Preserving Access to the Legal System. EEOC will target policies and practices that interfere with individuals' and EEOC's efforts to identify and attempt to remedy employment discrimination such as retaliation, overly broad waivers, restrictive settlement provisions, and failure to retain records required by EEOC regulations.
- Preventing Harassment Through Systemic Enforcement and Targeted Outreach. Citing the frequency with which workers complain of harassment in the workplace, the Commission believes that focusing on systemic enforcement and educational outreach campaigns will deter future violations.
To implement the SEP's national priorities, EEOC will update
and adapt its Priority Charge Handling Procedures
("PCHP") system, which categorizes charges to focus on
strategic enforcement. EEOC will promptly screen each charge to
determine if it raises an SEP priority issue. If an SEP priority
issue is involved, EEOC will conduct a preliminary assessment to
determine if the charge is likely to have merit. EEOC will
initially designate meritorious charges as the highest category in
the PCHP and may conduct a "deeper and more expeditious
examination" to determine whether to pursue these charges.
Meritorious charges that raise SEP issues will receive additional
investigation and resources. The Commission says that further
guidance regarding PCHP implementation will be
"forthcoming."
The SEP also reaffirms the Commission's delegation of
litigation authority to the general counsel, who delegates this
authority to the regional attorneys. The general counsel has
discretion to bring or intervene in litigation in all cases except
those involving a major expenditure of resources, a developing area
of law in which the Commission has not taken an official position,
issues the general counsel reasonably believes should be submitted
to the Commission for consideration because of the likelihood of
public controversy, and all recommendations for Commission
participation as amicus curiae, which require
approval.
Finally, the SEP mandates that each of the 15 district offices
present one litigation recommendation to the Commission each fiscal
year.
The SEP provides employers with an important preview of the types
of issues EEOC will likely target in the coming years, and how the
agency plans to enforce its edict. Employers should pay close
attention to the appearance of SEP national priority issues in
their workplaces and take any appropriate action.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
