After much anticipation, heated debate, and numerous invitations for public comment on the EEOC’s Strategic Enforcement Plan, on February 20, 2013, the EEOC provided an update on its implementation of the Strategic Plan. Approved on December 18, 2012, the Strategic Plan will function as the blueprint for the Commission’s enforcement activity for the next several years. Because of the Plan’s importance to employers, corporate counsel, and HR professionals, Seyfarth Shaw LLP offered its input on the Strategic Plan from the earliest stages of the EEOC’s drafting process. Seyfarth voiced pressing concerns in both its June 2012 and September 2012 comments to the EEOC.
The EEOC opened the first portion of its meeting to the public and addressed the Commission’s progress in implementing the Strategic Plan. The EEOC’s Performance Improvement Officer, Claudia Withers, and the Director of Research, Information and Planning, Deidre Flippen, answered questions about the EEOC’s objective of strategic law enforcement and addressed the Strategic Plan’s performance measures.
An additional speaker was Constance Barker, one of the Commissioners of the EEOC. Much could be gleaned from the issues Commissioner Barker addressed (her written comments are here). Especially telling was Commissioner Barker’s prediction that the EEOC’s systemic litigation program will take precedent over the EEOC’s prevention efforts. She articulated several concerns about the EEOC’s emphasis on enforcement of discrimination laws. She sees this as driving up the amount of resources allocated on discrimination that has already occurred, whereas the EEOC would be better off allocating those resources on prevention mechanisms. Commissioner Barker explained that she is opposed to the Strategic Plan because it places the EEOC’s emphasis on litigating discrimination claims, instead of concentrating efforts on preventing discrimination from happening in the first place.
She also lamented the fact that most lawsuits are filed without the Commissioners’ knowledge. For example, Commissioner Barker stated that in FY 2012, the Commission filed 122 lawsuits in the name of the EEOC but under the rules of the delegation to the General Counsel, only 3 of the 122 lawsuits were sent to the Commissioners for their review and vote. Her speech pointedly suggested that the EEOC rescind the delegation to the General Counsel, which would allow Commissioners to carry out their fundamental responsibility of reviewing, deliberating, and voting on proposed litigation.
In all, this meeting resulted in a robust exchange of ideas and viewpoints from the EEOC. The question remains, of course, will those key decision-makers at the EEOC take control of litigating systemic issues? If the EEOC acts on the written recommendations that were submitted, along with those voiced in last week’s meeting, it would mean a fundamental change in the way that the EEOC views and approaches cases. Further, if the EEOC does embrace a dialogue focused on education and outreach efforts - as Commissioner Barker urged - it would value the efforts that many large employers have made to promote diversity in their workforces and the prospects for reducing discrimination in the workplace will come closer to full realization.