Citing an “opportune moment to aim for bold and transformative change,” the Equal Employment Opportunity Commission has released on September 4th its Draft Strategic Enforcement Plan (the “Plan”). EEOC lists systemic recruiting and hiring discrimination as its first priority, followed by protecting immigrant and migrant workers from discrimination. The EEOC also committed to investigating “emerging” issues, including examining common Americans with Disabilities Act defenses invoked by employers, utilizing Title VII of the Civil Rights Act to protect members of the LGBT community, and pushing employers to accommodate pregnant women.
While complaining about insufficient funding, the EEOC stressed that it is “better situated” to attack recruitment and hiring discrimination than individuals or private attorneys because of the EEOC’s access to data and documents. Although not referencing the U.S. Supreme Court’s 2011 Wal-Mart v. Dukes ruling on class actions in the Plan, the EEOC’s claim certainly indicates that the agency will pursue aggressively employment practices that may be abandoned by the private plaintiffs’ bar in light of the Supreme Court’s ruling — the EEOC is not constrained by the class action requirements of Rule 23 of the Federal Rules of Civil Procedures. (For more information on the Supreme Court ruling, see Supreme Court Reverses Certification of Nationwide Class of 1.5 Million Female Workers.)
With its reference to accessing employer “data and documents,” the EEOC clearly intends to further ramp up its already aggressive subpoena efforts. In the past, each EEOC District Office has at times limited its hiring discrimination investigations to businesses in its own territory. However, the Plan stresses that investigation and litigation will not be so limited in the future. Instead, the EEOC will pursue policies and practices on a “company-wide” basis. Additionally, the Plan commits to a “multi-year research” effort to coordinate strategic enforcement, indicating the agency will be utilizing its access to EEO-1 data in determining vulnerabilities among particular employers and industries.
The EEOC lists “pre-employment tests, background screens, and date of birth screens in online applications” as particular employment practices of interest. The Plan also states that the EEOC will focus on “channeling/steering of individuals into specific job due to their status in a particular group.”
The EEOC pledges some relief from an “all litigation” model in the areas of harassment and retaliation. According to the Plan, despite “all the EEOC’s administrative and legal enforcement efforts” that have been devoted over the years to combating retaliation and harassment, those forms of discrimination continue to persist. Accordingly, the Plan commits to redirecting some of the EEOC’s efforts to “national education and outreach.”
The agency has invited stakeholders to provide comments on the draft Plan by September 18, 2012. The EEOC has indicated it will approve a final version of the Plan by the end of its fiscal year (September 30, 2012).