The Equal Employment Opportunity Commission ("EEOC") approved its highly anticipated Strategic Enforcement Plan, or "SEP," on December 17, 2012. The SEP reaffirms EEOC's continuing commitment to class and systemic discrimination investigations and litigation; announces a new and unprecedented focus on lesbian, gay, bisexual, and transgender cases; highlights the Commission's focus on expanded protections for disabled and pregnant individuals; targets employers' use of background checks and criminal history to make employment decisions; identifies other facially neutral practices upon which EEOC plans to focus; and delegates nearly all of the Commission's litigation authority to the EEOC's general counsel and 15 regional attorneys.
The SEP establishes six national priorities for enforcement across the Commission's headquarters and its 53 district, field, area, and local offices. The Commission claims that its national priorities involve issues that affect large numbers of individuals, employers, or practices; relate to developing areas of employment law; affect workers unaware of or reluctant to exercise their legal rights; involve discriminatory employment practices that interfere with enforcement of antidiscrimination laws; and are suited to government enforcement due to the Commission's access to information, data, and research.
- Eliminating Barriers in Recruitment and Hiring. EEOC will target systemic intentional discrimination in recruitment and hiring, as well as facially neutral recruitment and hiring practices that adversely affect individuals on the basis of race, ethnicity, religion, age, gender, or disability. Of particular interest to EEOC are exclusionary policies and practices that include channeling members of certain groups into specific jobs, restrictive application processes, and the use of screening tools such as pre-employment tests, background checks, and questions regarding dates of birth.
- Protecting Immigrant, Migrant, and Other Vulnerable Workers. The Commission will also target discriminatory practices and policies affecting immigrant, migrant, and other vulnerable workers, such as disparate pay, job segregation, harassment, and trafficking.
- Addressing Emerging and Developing Issues. EEOC will address trends and developments in the law including, but not limited to, (i) Americans with Disabilities Act issues such as coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat; (ii) accommodations for pregnancy-related limitations under the Americans with Disabilities Act Amendments Act and the Pregnancy Discrimination Act; and (iii) coverage of lesbian, gay, bisexual, and transgender individuals under Title VII "as they may apply."
- Enforcing Equal Pay Laws. EEOC will encourage directed investigations and Commissioner charges to target compensation systems and practices that discriminate based on gender.
- Preserving Access to the Legal System. EEOC will target policies and practices that interfere with individuals' and EEOC's efforts to identify and attempt to remedy employment discrimination such as retaliation, overly broad waivers, restrictive settlement provisions, and failure to retain records required by EEOC regulations.
- Preventing Harassment Through Systemic Enforcement and Targeted Outreach. Citing the frequency with which workers complain of harassment in the workplace, the Commission believes that focusing on systemic enforcement and educational outreach campaigns will deter future violations.
To implement the SEP's national priorities, EEOC will update and adapt its Priority Charge Handling Procedures ("PCHP") system, which categorizes charges to focus on strategic enforcement. EEOC will promptly screen each charge to determine if it raises an SEP priority issue. If an SEP priority issue is involved, EEOC will conduct a preliminary assessment to determine if the charge is likely to have merit. EEOC will initially designate meritorious charges as the highest category in the PCHP and may conduct a "deeper and more expeditious examination" to determine whether to pursue these charges. Meritorious charges that raise SEP issues will receive additional investigation and resources. The Commission says that further guidance regarding PCHP implementation will be "forthcoming."
The SEP also reaffirms the Commission's delegation of litigation authority to the general counsel, who delegates this authority to the regional attorneys. The general counsel has discretion to bring or intervene in litigation in all cases except those involving a major expenditure of resources, a developing area of law in which the Commission has not taken an official position, issues the general counsel reasonably believes should be submitted to the Commission for consideration because of the likelihood of public controversy, and all recommendations for Commission participation as amicus curiae, which require approval.
Finally, the SEP mandates that each of the 15 district offices present one litigation recommendation to the Commission each fiscal year.
The SEP provides employers with an important preview of the types of issues EEOC will likely target in the coming years, and how the agency plans to enforce its edict. Employers should pay close attention to the appearance of SEP national priority issues in their workplaces and take any appropriate action.