As the first quarter of 2013 has come to a close, employers have begun to notice the Equal Employment Opportunity Commission’s (EEOC) efforts at increased enforcement in line with its Strategic Enforcement Plan (SEP). In adopting a set of priorities for its SEP for years 2013-2016, the EEOC establishes three objectives:
- Combat employment discrimination through strategic law enforcement;
- Prevent employment discrimination through education and outreach; and
- Deliver excellent and consistent service through a skilled and diverse workforce and effective systems.
The SEP then integrates the agency’s investigation, conciliation, and litigation responsibilities in the private and public sectors. The Commission’s announced guiding principles for implementing the SEP include a targeted approach with focused attention on the identified set of priorities.
First, the Commission’s priorities will receive a greater share of agency time and resources. The agency recognizes that a focused effort should have a broad and lasting impact and should more effectively advance the agency’s mission and the public interest. Second, the SEP adopts an integrative approach. According to the EEOC, this will ensure the full use of communications, outreach, education training, research, and technology as tools to advance the agency’s overall mission in concert with administrative enforcement and legal enforcement. Employers have witnessed this integrated approach with the EEOC, the Department of Justice, the Department of Labor, and other Fair Employment Practices agencies, as well as with private lawyers cooperating in enforcement actions. Third, the EEOC seeks to establish clear expectations for those charged with implementing the plan and provide for regular and meaningful communication among the various entities to ensure strategic, integrated, and consistent enforcement.
The EEOC identified the following areas for national enforcement: (1) issues that have a broad impact because of the number of individuals and employers or practices affected; (2) issues involving developing areas of the law; (3) issues affecting workers who may lack awareness of their legal rights or are reluctant to exercise those rights; (4) issues involving discriminatory practices that impede or impair full enforcement of the antidiscrimination laws; and (5) issues that are best addressed by government enforcement because of the EEOC’s access to information, data, and research.
The EEOC’s six national priorities under the SEP are as follows:
- Eliminating barriers in recruitment and hiring. The EEOC is targeting both class-based recruitment and facially neutral recruitment in hiring practices that discriminate against racial, ethnic, religious groups; older workers; women, and people with disabilities.
- Protecting immigrant, migrant, and other vulnerable workers by targeting disparate pay, job segregation, harassment, trafficking, and other discriminatory practices and policies that impact vulnerable workers who are often unaware of their rights under the laws or who are reluctant or unable to exercise those rights.
- Addressing emerging and developing issues, including the Americans with Disabilities Act Amendments Act (ADAAA) and issues involving reasonable accommodation, qualification standards, undue hardship, direct threat, and accommodating pregnancy-related limitations under the ADAAA and the Pregnancy Discrimination Act. This priority also targets coverage of lesbian, gay, bisexual, and transgender individuals under Title VII.
- Enforcing equal pay laws by targeting compensation systems and practices that discriminate based upon gender.
- Preserving access to the legal system.
- Preventing harassment through a systematic enforcement and targeted outreach. Harassment continues to be one of the most frequent complaints raised in the workforce.
Statistics show that the EEOC has stepped up its investigations and become more aggressive in the establishment of its enforcement goals. In 2012 the agency obtained $36.2 million in settlements, which is a fourfold increase over the $8.6 million in settlements it obtained in 2011. The EEOC also plans on litigating more cases and devoting a greater percentage of its resources to the new priorities. While recognizing that it is not able to litigate every meritorious case that fails in conciliation, the EEOC intends to establish a minimum percentage of cases that it will litigate to address systemic discrimination issues.
At the same time the EEOC will continue its emphasis on dispute resolution programs, which have become critical components of its enforcement program. Resolution of charges through mediation comprised 91 percent of all administrative settlements by the agency in fiscal year 2012. Seventy-six percent of the 11,380 charges filed proceeded to mediation in 2012, and most parties who participated in mediation viewed it favorably, with 98 percent reporting confidence in the mediation program.
As anecdotal evidence, members of the Bradley Arant Boult Cummings Labor and Employment practice group have noticed an uptick in the EEOC’s enforcement procedures. The EEOC is issuing more subpoenas, expanding investigations beyond the scope of the original or individual charge, and taking a more aggressive stance in conciliation efforts by seeking additional damages besides back pay, such as compensatory damages for emotional distress and humiliation. In addition, the EEOC has taken a closer look at class discrimination claims on behalf of groups and individuals with a focused review of waivers by employers that seek to deprive employees of their individual rights under the law, including the right to file a charge or the right to participate in an EEOC investigation.
None of the information provided in this SEP should be surprising to employers who have either already been exposed to the EEOC’s increased enforcement efforts or become aware of the agency’s publicly announced expanded efforts at enforcement and collaboration among the various federal agencies. What remains to be seen is whether the EEOC will accomplish its stated goals or whether the SEP will simply cause increased consternation for employers who find themselves under a steady deluge of employee complaints to various agencies as well as federal court discrimination lawsuits.