An employer is more likely to deal with a discrimination claim originating from the EEOC than ever encounter a private civil action alleging discrimination. That is the basic idea behind the establishment of the EEOC: to provide a government agency as the first step for judging the merits of employment discrimination claims and guiding employers in order to avoid enforcement problems. The winnowing effect of EEOC enforcement decisions and the preventative impact of EEOC guidance benefit good employers. But like any institution, the EEOC’s energies and objectives can wax, wane, and refocus. Given the renewed federal enforcement initiative of the Obama administration’s second term, what is the EEOC’s focus during the next four years?
Because the EEOC is a public agency, employers get to see the playbook. The EEOC approved its Strategic Enforcement Plan (“SEP”) for 2013-16 at the end of 2012 and it can be found here. The EEOC’s SEP focuses on six key areas:
- Eliminating barriers in recruitment and hiring;
- Protecting immigrant, migrant, and other vulnerable workers;
- Addressing emerging and developing employment discrimination issues;
- Enforcing equal pay laws;
- Preserving access to the legal system; and
- Preventing harassment through systemic enforcement and targeted outreach.
The SEP directs the EEOC to take an integrated approach throughout the private, public (state and local), and federal sectors. Moreover, each EEOC district office must develop a district complement plan for enforcing the SEP locally. In short, the 2013-16 SEP is very real and will directly affect enforcement actions and employer interaction with the EEOC.
Takeaways: What does this mean for the typical employer? Immediate general advice is: pay attention to hiring obligations, which can be sometimes regarded as very secondary to obligations to current employees; make sure to be responsive to immigrant and vulnerable workers protection; and double-check compensation equity compliance with the Equal Pay Act. Another important response to this renewed enforcement initiative is to be thorough and prompt in charge responses and compliant with EEOC investigations. Legal counsel should play a critical role in addressing the real world impact of the EEOC’s 2013-16 Strategic Enforcement Plan.