On December 17, 2012, the EEOC approved its new Strategic Enforcement Plan (“SEP”) for fiscal years 2013 – 2016. The SEP establishes enforcement priorities going forward and integrates all components of the EEOC’s enforcement efforts. The SEP replaces the National Enforcement Plan of 1996.
According to the EEOC, the enforcement priorities were identified based upon the following factors: (1) issues that will have broad impact; (2) issues involving developing areas of the law; (3) issues affecting workers who lack awareness of their rights; (4) issues involving practices that impede or impair enforcement; and (5) issues that may be best addressed by government enforcement.
Based on these factors, the SEP established six enforcement priorities upon which the EEOC will focus its enforcement efforts for the next four years:
1. Eliminating Barriers in Recruitment and Hiring
This priority area will focus on “class-based intentional recruitment and hiring discrimination and facially neutral recruitment and hiring practices” that have an adverse (disparate) impact on particular protected groups. The following polices and practices will be targeted:
- Channeling/steering individuals into specific jobs due to status in a protected class;
- Restrictive application processes; and,
- Use of screening tools, such as pre-employment tests and background checks.
According to the EEOC, its access to “data, documents and potential evidence of discrimination in recruitment and hiring” puts it in a better position than private attorneys to pursue these claims.
2. Protecting Immigrant, Migrant and Other Vulnerable Workers
Disparate pay, job segregation, harassment, trafficking and other forms of discrimination against immigrant, migrant and other vulnerable workers will be a target of the EEOC. The Department of Labor has already made this a focus of its minimum wage and overtime enforcement efforts.
3. Addressing Emerging and Developing Issues
The EEOC will use its research, data collection, receipt of charges and adjudication of complaints to identify and prioritize emerging or developing issues. The EEOC specifically recognized the following “emerging” issues that will be a priority:
- Under the ADA, issues involving coverage, reasonable accommodation, qualification standards, undue hardship and direct threat;
- Accommodating pregnancy-related limitations under the ADAAA and the Pregnancy Discrimination Act; and,
- Coverage of lesbian, gay, bisexual and transgender individuals.
Although the last emerging issue identified does not constitute a protected class under Title VII, the EEOC intends to address the issue through Title VII’s sex discrimination provisions.
4. Enforcing Equal Pay Laws
Compensation systems and practices that discriminate based on gender will be a priority. The EEOC intends to use directed investigations and Commissioner Charges to facilitate enforcement. In other words, enforcement efforts will be initiated by the EEOC, rather than in response to charges filed by individuals.
5. Preserving Access to the Legal System
The EEOC intends to target policies and practices that discourage or prohibit the exercise of rights under employment discrimination statutes, or which serve to impede enforcement efforts. Targeted polices and practices include:
- Overly broad waivers;
- Settlement provisions that prohibit filing of charges or providing information or assisting with an investigation; and,
- Employer’s failure to maintain records required by EEOC regulations.
6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach
The EEOC is not focusing on sexual harassment. Instead, the priority is to prevent harassment based on race, ethnicity, religion, age and disability. The EEOC will focus on systemic enforcement and an educational campaign to combat harassment.
In order to implement the SEP, the EEOC will update its Priority Charge Handling Procedures (“PCHP”). Charges that raise any of the six identified priorities will be “afforded the highest priority.” Charges will be initially screen for a priority issue. If a priority issue is present and is likely to have merit, it will receive “greater investigatory attention and resources to ensure timely and quality enforcement action.”
The EEOC’s litigation program will also focus on the SEP priorities. The EEOC Districts will be directed to give precedence in case selection to the SEP priorities. The Districts will retain the discretion to pursue local and regional issues, with an emphasis on systemic violations.
The increased enforcement efforts that we saw in the past four years will continue over the next four years with a focus on the six priorities identified in the SEP. Larger employers should pay particular attention to the priority issues as the EEOC’s enforcement efforts will target systemic violations. As the SEP repeatedly discusses the EEOC’s data collection and analysis abilities, it can be expected that more disparate impact and pay disparity cases will be brought that rely heavily upon statistical analyses. Employers should self-audit their compensation systems and carefully review their screening practices for significant disparities. Going forward, when a charge is received employers and their counsel should conduct an initial analysis to determine whether a priority issue is implicated as that will have a significant impact on defense and settlement considerations.