The Equal Employment Opportunity Commission (EEOC) has announced its approval of a Strategic Enforcement Plan (SEP) that establishes agency priorities and integrates all components of the EEOC's private, public, and federal sector enforcement activities. The stated purpose of the SEP is to “focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace.” Members of the Commission voted 3-1 on December 17, 2012 in favor of the SEP, a component of the EEOC’s larger Strategic Plan for 2012-2016. The final SEP includes some significant differences from the draft plan released in September, which will be discussed below.
The final SEP lists the following six priorities for national enforcement in both the private and public sectors:
- Eliminating Barriers in Recruitment and Hiring. The SEP states that the agency will continue to target class-based recruitment and hiring practices that discriminate against protected classes. Such policies and practices that are potentially discriminatory include channeling/steering individuals into specific jobs due to their status in a particular group; restrictive application processes; and the use of screening tools (e.g., pre-employment tests, background checks, date-of-birth inquiries). The EEOC contends that the agency’s access to data, documents and potential evidence of discrimination in recruitment and hiring renders it “better situated to address these issues than individuals or private attorneys, who have difficulties obtaining such information.”
- Protecting Immigrant, Migrant and Other Vulnerable Workers. The agency will pay particular attention to disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting these workers.
- Addressing Emerging and Developing Issues. The agency plans to follow and respond to new legal theories, court decisions, and other developments affecting workplace discrimination. Such emerging issues include “certain ADA issues, including coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat, as refined by the Strategic Enforcement Teams; accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act (PDA); and coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.”
- Enforcing Equal Pay Laws. The EEOC will pay close attention to potentially discriminatory compensation systems and practices. This category was not initially included in the draft SEP.
- Preserving Access to the Legal System. The SEP states that the agency “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.” Examples include retaliatory actions, overly broad waivers, settlement provisions that prohibit filing charges with the EEOC or providing information to assist in the investigation or prosecution of claims of unlawful discrimination, and failure to retain records required by EEOC regulations. In addition, the SEP reiterates the agency’s support of private enforcement of anti-discrimination laws. Therefore, the district offices are encouraged to provide referrals to local and state bar associations to individuals whose charges the EEOC opts not to pursue.
- Preventing Harassment Through Systemic Enforcement and Targeted Outreach. The EEOC reaffirms its commitment to pursuing systemic cases -- those pattern or practice, policy, and/or class action-type cases involving allegations of discrimination that have a broad impact on an industry, business, or geographic area – and conducting “a targeted outreach campaign to deter harassment in the workplace.” According to the SEP, priority should be given to meritorious systemic charges and cases that raise SEP or district priority issues, as opposed to individual priority matters and all non-priority matters, whether individual or systemic. The SEP states that systemic enforcement should be coordinated across EEOC districts.
District Complement Plans
The EEOC recognizes that charge trends and demographic differences among various field offices might dictate which of the above priorities will receive the most attention and resources. To this end, the SEP directs the 15 EEOC districts to develop their own District Complement Plans by March 29, 2013, to take effect on June 1, 2013. At a minimum, these plans should identify how the office will implement the SEP priorities; identify local enforcement priorities, including areas for systemic investigation and litigation and strategies for addressing them; and identify strategies for collaborative legal/enforcement efforts.
Priority Charge Handling Procedures (PCHP)
The Commission’s Priority Charge Handling Procedures (PCHP) system, adopted in 1995, established a means of classifying charges filed with the agency in order to prioritize them. Now that the SEP has been adopted, the EEOC explains that the PCHP “must be examined and updated to ensure that meritorious priority matters receive greater resources and attention.” As previously noted, charges raising systemic issues and/or priorities identified in either the SEP or in the District Complement Plans should be given the highest priority.
Commission Approval of Cases
The final SEP differs significantly from the draft plan in terms of the level of involvement the Commission intends to have over case review. While the SEP reaffirms the existing delegation of authority within the agency, the Commission will exert more influence over the cases selected for litigation. In past years, EEOC district offices submitted relatively few cases to the Commission for approval. Under the new SEP, “a minimum of one litigation recommendation from each District Office shall be presented for Commission consideration each fiscal year.” This change will result in at least 15 cases presented annually to the Commission. In addition, the SEP identifies four types of cases in which Commission approval is required. These categories of cases are:
- Cases involving a major expenditure of resources, e.g., cases involving extensive discovery or numerous expert witnesses and many systemic, pattern-or-practice or Commissioner's charge cases;
- Cases that present issues in a developing area of law where the Commission has not adopted a position through regulation, policy guidance, Commission decision, or compliance manuals;
- Cases that the General Counsel reasonably believes to be appropriate for submission for Commission consideration because of their likelihood for public controversy or otherwise (e.g., recently modified or adopted Commission policy); and
- All recommendations in favor of Commission participation as amicus curiae, which shall continue to be submitted to the Commission for review and approval.
Notably, category (c) suggests that any cases touching on topics discussed in recent EEOC guidance, such as discrimination based on an applicant’s criminal history, will require the Commission’s approval. Category (a), on the other hand, is extremely broad.
The SEP notes also that the Commission will hold quarterly meetings on SEP enforcement, and will monitor developments based on quarterly reports filed by all office directors.