EEOC Issues Draft Strategic Plan

This week, on September 4, 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued its Strategic Enforcement Plan  for the four-year period 2012 -2016. This Plan provides a concise roadmap for the EEOC’s priorities in trying to eradicate discrimination in the workplace. The EEOC stated that the criteria for establishing the priorities was:

1. Issues that will have broad impact because of the number of individuals or employers affected;
2. Issues involving developing areas of the law, where involvement by the leading governmental agency charged with enforcing employment anti-discrimination laws is appropriate;
3. Issues affecting workers who may lack an awareness of their legal protections, or who may be reluctant or unable to exercise their rights;
4. Issues involving discriminatory practices that impede or impair full enforcement of employment anti-discrimination laws; and
5. Issues that may be best addressed by the EEOC given its access to data and research.

Then, the EEOC stated its “National Priorities” as follows:

1. Eliminating Systemic Barriers in Recruitment and Hiring. The EEOC will target class-based intentional hiring discrimination and facially neutral hiring practices that adversely impact particular groups. Racial and ethnic minorities, older workers, women, and people with disabilities continue to confront discriminatory policies and practices at the recruitment and hiring stages. These include exclusionary policies and practices, the channeling/steering of 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 screens, date of birth screens in online applications) that adversely impact groups protected under the law. Because of the access EEOC has to obtain data and documents and potential evidence of discrimination in recruitment and hiring, the EEOC is better situated to address these issues than individuals or private attorneys who have difficulties obtaining such information.
2. Protecting immigrant, migrant and other vulnerable workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory language policies affecting these vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
3. Addressing Emerging Issues. The EEOC will continue its efforts to address emerging employment issues in the nation's workforce. Given EEOC's research, data collection and receipt of charges and complaints in the private, public and federal sectors, the agency is well-suited to identify emerging trends and potential discriminatory practices. Swift and responsive attention to events, recently enacted legislation, and developing judicial and administrative interpretations and theories has the benefit of preventing the spread of discriminatory practices by promoting greater awareness and enabling voluntary compliance. ... Current emerging issues that EEOC will target include:

• ADA Amendments Act issues, particularly coverage issues, and the proper application of ADA defenses, such as undue hardship, direct threat, and business necessity;
• LGBT (lesbian, gay, bisexual and transgender individuals) coverage under Title VII sex discrimination provisions, as they may apply;
• Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.

1. Preserving Access to the Legal System. The EEOC will also target policies and practices intended to discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC's investigative or enforcement efforts. These policies or practices include retaliatory actions; overly broad waivers; settlement provisions that prohibit filing charges with EEOC or providing information in EEOC or other legal proceedings; and failure to retain records required by EEOC regulations. ..
2. Combating Harassment. For many years, the EEOC has focused administrative and enforcement efforts to curtail workplace harassment on the basis of race, color, sex, ethnicity, age, disability and religion. Nevertheless, these practices - often the most pernicious and direct - persist. As with retaliation, it is therefore necessary to re-evaluate our strategies to be more effective, including refocusing our efforts on a national education and outreach campaign aimed at both employees and employers, many of whom struggle with how to prevent and appropriately respond to harassment in the workplace.

This Strategic Enforcement Plan is welcome news for all those fighting against discrimination, retaliation and harassment in the workplace. We are proud to part of the fight.