On December 18, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) approved its Strategic Enforcement Plan (SEP) highlighting six high-priority target areas. The SEP stresses that the EEOC’s enforcement efforts over the next four years will focus on these six targets. Therefore, employers should review their policies and practices with special attention to these areas and prioritize compliance work accordingly. In addition, the SEP informs employers that increased systemic litigation and private enforcement actions are here to stay.
The six items highlighted as national priorities in the SEP are:
- Eliminating Barriers in Recruitment and Hiring. The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women and people with disabilities.
- Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
- Addressing Emerging and Developing Issues. The EEOC will target emerging issues in equal employment law, including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations. The EEOC cites the following examples of emerging issues: (1) coverage, reasonable accommodation, qualification standards, undue hardship and direct threat under the ADA; (2) accommodating pregnancy-related limitations; and (3) coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions.
- Enforcing Equal Pay Laws. The EEOC will target compensation systems and practices that discriminate based on gender.
- Preserving Access to the Legal System. The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts.
- Preventing Harassment Through Systemic Enforcement and Targeted Outreach. The EEOC will pursue systemic investigations and litigation and conduct a targeted outreach campaign to deter harassment in the workplace.
In addition, the SEP requires the Federal Sector and each District Office to identify their own enforcement priorities and develop plans to complement to the SEP. Employers should remain alert for these additional priority areas as they are identified in their district.
The SEP will require staff to examine all charges and give greater attention and resources to the identified priorities. The SEP’s six priorities will also be given precedence in case selection and legal enforcement, and the plan suggests that non-priority cases could be held back or pushed into ADR.
In order to implement the SEP, Strategic Enforcement Teams will be formed to recommend comprehensive mechanisms for addressing the national priorities. These Teams and an increased focus on integration will hopefully promote consistency in EEOC enforcement, leading to a more predictable environment for employers.
The SEP also continues to emphasize systemic investigation and litigation over individual matters. The EEOC is currently pursuing 62 systemic cases, roughly 20 percent of its active litigation, and estimates that by 2016, 24 percent of its cases will involve systemic issues. Additionally, the EEOC claims to have resolved 240 systemic investigations in FY 2012, a 45 percent increase from FY 2010, and secured $36.2 million through conciliation and pre-determination settlements, an amount four times greater than in FY 2011.
In addition, the SEP encourages greater collaboration with private attorneys to enforce federal anti-discrimination laws, permitting EEOC staff to share information with individual plaintiffs and their attorneys in order "to facilitate swift enforcement and early resolution of charges." The SEP also allows district offices to refer cases to local and state bar associations. These measures will increase private enforcement litigation, which, as employers know, can be more costly and time consuming than government enforcement.
On the whole, the SEP should give employers better insight into the EEOC’s priorities and hopefully provide greater consistency and predictability in EEOC enforcement. Employers should use this guidance to audit compliance systems and shore up weakness in the identified target areas. At the same time, employers must remain aware of the increased chance of being hit with a systemic lawsuit or private enforcement action.