On September 4, 2012, the EEOC published a draft of its Strategic Enforcement Plan (SEP), which was issued pursuant to the EEOC’s Strategic Plan for 2012-2016. That document provides employers an important glimpse into the types of discrimination that the EEOC intends to target in the coming years.
The five priorities for enforcement in the private, state and local government and federal sectors identified by the EEOC are:
- Eliminating Systematic Barriers in Recruiting and Hiring.
The EEOC intends to focus on class-based intentional hiring discrimination and facially neutral hiring practices that adversely impact particular protected groups. The SEP specifically identifies racial and ethnic minorities, older workers, women, and those with disabilities as classes of individuals that continue to suffer from discriminatory practices. It appears from the SEP that the EEOC is particularly interested in restrictive application processes, pre-employment tests, background checks, or use of age or other on-line information in the hiring process. Increased scrutiny of employer practices in those areas therefore is likely.
- Protecting Immigrant, Migrant and Other Vulnerable Workers
Unsurprisingly, the EEOC also intends to target “disparate pay, job segregation, harassment, trafficking and discriminatory language policies” affecting more vulnerable workers, such as immigrants and migrant workers. The EEOC long has considered those groups to have particular difficulty in seeking redress privately, both because of a lack of private attorneys familiar with the issues confronting those groups and because of the relatively low wages paid those groups, which decreases the incentive for private enforcement actions.
- Addressing Emerging Issues
Citing the actions the EEOC took following the September 11th attacks to protect workers from national origin and religious practices discrimination, the SEP indicates that the EEOC will continue to focus on emerging issues, specifically identifying the following:
- ADA Amendment Act issues
- Lesbian, gay, bisexual and transgender coverage under Title VII sex discrimination provisions
- Accommodating pregnancy as opposed to forced unpaid leave
- Preserving Access to the Legal System
The SEP indicates that the EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, such as retaliatory actions, overly broad waivers, settlement provisions that prohibit filing or cooperating with the EEOC, and the failure of employers to retain records. The SEP indicates that retaliation tops the list of those targeted policies or practices, but it is clear that it is interested in any contractual provisions which limits an individual worker’s ability to seek judicial recourse for a perceived violation of employment discrimination statutes.
- Combating Harassment
The SEP indicates that, notwithstanding the EEOC’s best efforts, it believes workplace harassment continues at unacceptable levels (calling such practices “the most pernicious and direct”) and the EEOC will continue to focus on and address those practices.
The SEP indicates that the Office of Field Programs and the General Counsel are to ensure that resources are directed towards addressing the priority issues identified in the SEP. That will include an assessment of whether a charge raising an SEP or district priority issue will be designated as “Category A” and, assuming the claim is deemed meritorious, it will receive increased investigative attention and enforcement action. Individual charges of discrimination, disability and retaliation will not ordinarily get a “Category A” designation unless they present a strong vehicle for development of the law. Rather, the focus of the SEP seems to be on “eradicating systemic discrimination” that has a broader impact on a certain “industry, occupation, business or geographic area”.