by Jack B. Harrison
On December 18, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) approved a Strategic Enforcement Plan for 2013-2016 (SEP). Three of the four sitting Commissioners voted for the SEP. These were Chair Jacqueline Berrien (D), Commissioner Chai Feldblum (D), and Commissioner Victoria Lipnic (R). Voting against the SEP was Commissioner Constance Barker (R).
The final version of the SEP is a revised version of the draft SEP the EEOC issued on September 4, 2012. The SEP focuses on the six high-priority target areas outlined below. Additionally, the SEP makes it clear that the EEOC will continue its focus on increased systemic litigation and private enforcement actions.
The six items highlighted as national priorities in the SEP are:
Eliminating Barriers in Recruitment and Hiring. According to the SEP, the EEOC will focus on class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women and people with disabilities.
Protecting Immigrant, Migrant and Other Vulnerable Workers. According to the SEP, the EEOC will focus on disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
Addressing Emerging and Developing Issues. According to the SEP, the EEOC will focus on emerging issues in equal employment law. These emerging issues will include: (1) coverage, reasonable accommodation, qualification standards, undue hardship and direct threat under the ADA; (2) accommodating pregnancy-related limitations; and (3) coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions.
Enforcing Equal Pay Laws. According to the SEP, the EEOC will focus on compensation systems and practices that discriminate based on gender.
Preserving Access to the Legal System. According to the SEP, the EEOC will focus on policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts.
Preventing Harassment Through Systemic Enforcement and Targeted Outreach. According to the SEP, the EEOC will focus on the pursuit of systemic investigations and litigation and on conducting a targeted outreach campaign to deter harassment in the workplace. The EEOC is currently pursuing 62 systemic cases, roughly 20 percent of its active litigation. The EEOC also claims to have resolved 240 systemic investigations in FY 2012, a 45 percent increase from FY 2010. Additionally, the EEOC states that it secured $36.2 million through conciliation and pre-determination settlements in FY 2012, an amount four times greater than in FY 2011.
The SEP also encourages greater cooperation and collaboration between the agency and private attorneys in seeking to enforce federal anti-discrimination laws. This move will allow EEOC staff to share information with individual plaintiffs and their attorneys in order "to facilitate swift enforcement and early resolution of charges." This increased cooperation and collaboration will likely increase private enforcement litigation, which often is more costly and time consuming to employers than government enforcement.
The SEP should provide prudent employers better guidance into the EEOC’s priorities and goals over the next several years. The guidance offered by the SEP should be used by employers and their counsel in reviewing compliance systems and eliminating any corporate weaknesses in the identified target areas. At the same time, employers must remain aware of the increased chance of encountering a systemic lawsuit or private enforcement action.