After much anticipation, heated debate, and numerous invitations for public comment, today the EEOC announced that it approved its Strategic Enforcement Plan for FY 2013-2016. As we previously reported, the EEOC’s SEP 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 SEP from the earliest stages of the EEOC’s drafting process. On June 19, 2012, Seyfarth Shaw LLP 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 goals.
Following up on those written submissions, the EEOC held a full-day public meeting on July 18, 2012, attended by Seyfarth Shaw, seeking additional input on its Plan. In September, the EEOC released a “revamped” Draft Plan. Finally, on December 18, 2012, the EEOC approved the final, operative SEP by a 3-1 vote. The SEP is a dense read, but contains a number of interesting take-aways that give insight into the sometimes baffling inner-workings of this government agency. Borrowing from spaghetti westerns, the SEP could be said to contain “The Good, The Bad and The Ugly.”
One of the most pressing concerns voiced by Seyfarth Shaw in both its June 2012 and September 2012 comments was the need for greater transparency in the EEOC’s goals and procedures. The final SEP begins by expressly listing six national enforcement priorities, including: (1) eliminating barriers in recruitment and hiring; (2) protecting immigrant, migrant, and other vulnerable workers; (3) addressing emerging and developing issues; (4) enforcing equal pay laws; (5) preserving access to the legal system; and (6) preventing harassment through systemic enforcement and targeted outreach. These stated priorities, while extremely broad, provide employers at least some insight into the EEOC’s goals and key concerns. These goals have remained consistent throughout the EEOC’s drafting process, and should be seen for what they are: the “hot topics” for the EEOC for the foreseeable future.
Seyfarth Shaw’s earlier comments also stressed the need for greater consistency among the EEOC’s district offices. We were heartened to see that throughout the final SEP, the EEOC has placed a consistent emphasis on the concept of integration. Specifically, the EEOC acknowledged the need for national priorities, standards, and oversight, and asserted that the SEP “seeks to establish clear expectations for those charged with implementing this plan and to provide for regular and meaningful communication amongst the Commission, General Counsel, agency leadership, and agency staff.” The SEP puts in place the EEOC’s oversight on implementation and an annual reporting requirement in furtherance of these ends. The SEP also mandates the formation of “Strategic Enforcement Teams” to promote uniformity and efficiency in achieving its enforcement priorities. A robust integration program could be highly beneficial to employers by stopping the EEOC’s current practice of filing multiple, identical lawsuits across the nation.
Despite such laudable goals, it is unclear whether the SEP’s focus on integration will actually result in marked improvements. Although the SEP highlights its integration plans, it also expressly provides for a continuing system of delegated authority to District Directors, the General Counsel, and the Office of Federal Operations. The final SEP also calls for the development of local priorities to address particular issues prevalent in a geographic location, which could very likely result in less transparency and clarity at the actual investigation and litigation level. As Seyfarth Shaw suggested in its comments though, the SEP calls for more coordination between investigative and legal enforcement staff and mandated that districts be held responsible for ensuring that such coordination is achieved.
Accordingly, although the SEP at least acknowledges the concerns raised by Seyfarth Shaw in its numerous comments and contributions, it remains to be seen whether the very real concerns raised will ultimately be addressed by this plan.
As has been previously reported, the SEP further emphasizes the EEOC’s increased emphasis on systemic litigation suits, which can have a devastating impact on employers caught in the crosshairs of the EEOC’s wide-reaching investigation and aggressive litigation. Specifically, the SEP notes that, at both the national and local level, “meritorious systemic charges and cases that raise SEP or district priority issues [will] be given precedence over individual priority matters and over all non-priority matters, whether individual or systemic.” As such, employers should be mindful that an EEOC investigation into one of the six national priorities or yet to be determined local priorities could turn into “example setting” litigation.
An even more troubling element of the SEP has survived the final cut in the drafting process. Earlier versions of the SEP decried the EEOC’s lack of resources as a barrier to pursuing what it felt was meritorious claims. One answer to the EEOC’s dilemma was to shuttle those cases to private attorneys who (for their cut of the recovery) will pursue the cases instead of the government. In an alarming statement, the EEOC suggest that the private bar “play[s] a vital role in enforcing laws prohibiting employment discrimination. The SEP goes so far to say that the EEOC will “support private enforcement of the federal anti-discrimination laws” through referrals to local and state bar associations. Many employers may find this delegation of governmental responsibilities to perform even-handed and unbiased investigations into (critically) alleged violations troubling, perhaps even reckless. As many employers know from experience, the agenda of the EEOC and the plaintiff’s employment bar are often divergent, and certainly Congress did not view the plaintiff’s bar as a deputized arm of the government’s enforcement mechanism when the EEOC was first formed.
How these more troubling aspects of the final SEP play out remains yet to be seen.
Finally, there are portions of the SEP that, even upon close examination, are vague and downright confusing – and perhaps “bad” as compared to the good and the ugly. For example, Section V. D. of the final SEP discusses an “integrated” approach to research, data, and employment. This section calls for “relevant research on a timely basis for cases in litigation, and have the ability to research broad issues of employment discrimination that are not connected to pending cases.” Even agency scholars have a tough time cracking the code of what this actually means, although apparently the SEP calls for a vote on a plan to integrate certain “priority areas” sometime in the summer of 2013. Unfortunately, this cryptic language only enforces employer skepticism that there will truly be any change in the EEOC’s methodology.
In this vein, one of the themes throughout the SEP is the EEOC’s implied lack of resources. The SEP sets forth that its goals and procedures are limited by their resources - a clear message to Congress and the administration that more money will translate into better results. Again, employers may take a cynical read of the SEP that suggests that the EEOC’s goals and mandates will shift based on its funding. Many employers will see such a grab for funding in the climate of a “fiscal cliff” as Washington business as usual.
Implications For Employers
Ultimately, employers will benefit from the EEOC adopting the SEP. The most common criticism in dealing with the EEOC is its lack of transparency and consistency. The SEP arms employers with at least some idea (no matter how opaque at times) of the EEOC’s goals and agenda. This will allow employers to prioritize compliance functions and order their affairs accordingly, but perhaps more importantly, will give them concrete authority when an element of this highly decentralized agency strays from its own core tenants.