In response to the EEOC’s June 4, 2012 press release soliciting public input on its Revised Draft Strategic Enforcement Plan, Seyfarth Shaw submitted its recommendations to the EEOC on September 18 for ways in which it can better achieve the goal of discrimination-free workplaces while not disregarding employer interests and involvement in the process. Our comments are hot off the press, and available here.
The EEOC’s 2012-2016 Strategic Plan will function as the blueprint for the Commission’s enforcement activity for the next several years. Because the Plan will affect all employers, corporate counsel, and HR professionals that work with the EEOC, we have kept readers up to date on the EEOC’s development of the Plan, and have offered our input from the earliest stages of the EEOC’s drafting process. Briefly, on June 19, 2012, Seyfarth Shaw submitted a series of extensive recommendations to the EEOC, suggesting concrete examples of challenges faced by employers working with the EEOC, and ways the agency could address these challenges while still achieving its goal. Seyfarth Shaw was one of only a few private organizations submitting input, and we blogged about it here. Following up on those written submissions, the EEOC held a full-day public meeting on July 18, 2012, seeking additional input on its Plan. Seyfarth Shaw attended the meeting, and discussed it here. Most recently, the EEOC released a “revamped” Draft Plan, which we blogged about here.
The EEOC’s Revised Draft Plan focuses on certain “Strategic Objectives” accompanied by targeted “Outcome Goals” and “Performance Measures.” Seyfarth based yesterday’s submission on our near-daily interaction with the EEOC in some of its largest and most complex matters. Because of the relationships we have formed with the EEOC at all levels, Seyfarth Shaw has developed a unique perspective on the problems facing employers seeking to work with the EEOC.
Seyfarth Shaw’s recommendations of September 18 included:
An emphasis on transparency will advance the EEOC’s goals: During the course of an EEOC investigation, and indeed even during conciliation, information and guidance from the EEOC are rarely clear or accessible for employers. Our submission urged a more open forum and dealing in a transparent manner while the EEOC conducts its procedures and initiatives.
The perils of inconsistency within the EEOC’s District Offices: One common denominator of many of the EEOC’s problems is its fractured organizational structure. The lack of procedural and substantive consistency between and among the various EEOC district offices is a constant source of frustration not only for employers, but also for the Commission itself. We suggest that the EEOC’s final Plan must call for consistent - and, critically, public - development of enforcement procedures that are applied consistently, regardless of the location of the EEOC’s district office.
The benefits to showing what goes on behind the agency’s curtain: The Revised Draft Plan still notes that it intends to integrate some of its investigative and legal functions. If pursued, this would be a chilling development. As Seyfarth pointed out in our original submission, the EEOC is first and foremost supposed to be a neutral fact-finder at the investigation stage. Seyfarth warned that the Plan should not take the myopic approach of endorsing investigations that are intertwined with legal interests and involvement. Seyfarth noted that if the EEOC nevertheless insists upon pursuing the “integrated” approach, we recommend that it allow employers access to the players who are directing the matter behind the scenes.
Suggestions for refining substantive issues: The Revised Draft Plan notes that the EEOC will place a greater emphasis on targeting alleged “human trafficking” matters. Seyfarth’s submission explains that this is problematic as the EEOC is potentially overstepping its bounds by using Title VII as a vehicle to remedy the alleged violations of other laws.
A call for additional employer involvement in the Strategic Plan: Employers and their counsel are often shut out of EEOC claims handling. The EEOC’s goal of eliminating workplace discrimination is a laudable one, and one shared by employers from coast to coast. Seyfarth’s submission encourages the EEOC to keep employers involved in the development of the Strategic Plan; the more that employers are involved in developing policies, procedures, and areas of focus for the Commission, the more likely the EEOC will see cooperation.
It remains to be seen if the EEOC will listen to these suggestions. We hope that, armed with Seyfarth Shaw’s recommendations, the EEOC will be better able to accomplish its agenda by partnering with - not working against - employers around the country.