Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The Equal Employment Opportunity Commission (EEOC) has released a draft of its Strategic Enforcement Plan (SEP) for public comment. The SEP is a component of the EEOC’s larger Strategic Plan for 2012-2016, a proposal approved in February 2012 that directed the EEOC to develop a SEP that (1) establishes priorities for the EEOC and (2) integrates all components of EEOC's private, public, and federal sector enforcement. Earlier this summer the EEOC held a public meeting to solicit input on the SEP’s development.
The draft SEP identifies the following priorities for national enforcement in both the private and public sectors:
- Eliminating Systemic Barriers in Recruitment and Hiring. According to the EEOC, facially neutral policies and practices that disparately impact protected categories “include 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.” The EEOC claims that its ability to more readily obtain data and documents that could be potential evidence of discrimination makes the agency better suited to address barriers in hiring and recruiting than individuals or private attorneys.
- Protecting immigrant, migrant and other vulnerable workers. To achieve this goal, the agency will focus on disparate pay, job segregation, harassment, trafficking and discriminatory language policies that impact these workers.
- Addressing Emerging Issues. The EEOC considers the following to be examples of emerging areas of discrimination law: “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; and accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.”
- Preserving Access to the Legal System. The agency plans to “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.” Examples include retaliatory actions; overly broad waivers; settlement provisions that prohibit filing charges with the EEOC or providing information in EEOC or other legal proceedings; and failure to retain records required by EEOC regulations.
- Combating Harassment. The EEOC intends to re-examine its anti-harassment strategies and provide more education and outreach to employees and employers.
In addition to establishing these national priorities, the SEP directs the 15 EEOC districts to develop their own District Complement Plans by March 31, 2013, identifying, among other things, their own enforcement priorities.
In order to implement these national and district priorities, the EEOC intends to continue focusing particular attention on types of certain charges filed with the agency. According to the EEOC, the SEP “will now guide prioritization of investigations and case selection.” Pursuant to the priority charge handling procedures (PCHP), charges raising the issues outlined by the SEP or identified in District Complement Plans will be designated as Category A charges, and will receive the highest priority except for individual disability, harassment, and retaliation charges. However, because of the large number of disability, harassment, and retaliation cases filed each year, the EEOC stated that such charges should only be classified as category A charges “if they present strong vehicles for development of the law.”
As to litigation, the EEOC will also give preference to cases involving SEP or District priority issues. The SEP notes, however, that “neither the Commission nor the General Counsel will establish rigid goals as to the number of cases, priority or otherwise, that should be filed.”
In addition, the draft SEP reaffirms the EEOC’s focus on 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. The EEOC will give litigation preference to systemic charges that raise SEP priority issues over non-priority systemic cases.
The SEP also includes sections on the EEOC’s plans to integrate its administrative and legal enforcement activities, provide outreach, collaborate with other federal agencies, support private enforcement of anti-discrimination laws (such as providing referrals to local and state bar associations), and evaluate the SEP’s effectiveness.
The draft SEP is slated to take effect on October 1, 2012 and remain in effect until Sept. 30, 2016 or until another SEP is approved. Comments on the draft must be submitted by 5:00 pm ET on September 18, 2012 at email@example.com or received by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507.
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