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EEOC’s draft plan targets recruiting and hiring practices, LGBT bias, pregnancy accommodation, ADAAA issues

September 6th, 2012  |  Pamela Wolf

The EEOC has laid out several principles and priorities in its draft Strategic Enforcement Plan that reveal an agency poised to enforce antidiscrimination laws in the most efficient and effective way possible. The EEOC also makes clear exactly what problems it intends to target going forward, including systemic recruitment and hiring practices that are intentionally biased or have an unintentional adverse impact on minorities, women and people with disabilities. The agency has also elevated to the status of “national priorities” issues concerning the Americans with Disabilities Act Amendments Act (ADAAA); application of Title VII antidiscrimination provisions to lesbian, gay, bisexual, and transgender individuals (LGBT), and workplace accommodations for pregnancy.

Claims outpace funding. The draft plan is set against a background that includes a “dramatic rise in claims of discrimination” and allocated resources that “have failed to keep pace,” according to the EEOC. Between Fiscal Year 2000 and 2008, the agency’s staffing levels and funding dropped nearly 30 percent. It rebuilt some capacity in 2009 due to an infusion of resources, but that forward momentum stalled when funding was reduced and hiring freezes were implemented in FY 2011 and 2012. The EEOC says it “is faced with meeting all of its mission responsibilities at a time of unprecedented demand for its services, notwithstanding its limited resources.”

Targeted and integrated enforcement efforts. How will the EEOC live up to its mission despite its limited resources? Targeted enforcement efforts will be one of its “guiding principles.” According to the agency, “targeted enforcement efforts will have the broadest impact to prevent and remedy discriminatory practices in the workplace.” The EEOC will also “undertake an integrated approach to its work, one that mobilizes all segments of agency operations and emphasizes effectiveness, efficiency and consistency.”
The draft Strategic Enforcement Plan also delineates five “nationwide priorities”:

  1. Eliminating systemic barriers in recruitment and hiring;
  2. Protecting immigrant, migrant and other vulnerable workers;
  3. Addressing emerging issues;
  4. Preserving access to the legal system; and
  5. Combating harassment.

Recruitment and hiring. In order to eliminate systemic barriers in recruitment and hiring, the EEOC intends to “target class-based intentional hiring discrimination and facially neutral hiring practices that adversely impact particular groups.” The plan notes that racial and ethnic minorities, older individuals, and people with disabilities continue to face biased policies, including exclusionary policies and practices, channeling and/or steering of individuals into specific jobs due to their status as a group, restrictive application processes, and the use of screening tools, such as pre-employment tests, background screens, and date-of-birth screens on online applications.

It’s a good bet that the EEOC will be looking very closely at these particular employer practices.

Targeted emerging issues. The plan also sets forth a list of currently “emerging issues” that the EEOC specifically intends to target:

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

The EEOC intends an aggressive effort in targeting these emerging discrimination issues: “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.”

Although the draft plan has been submitted for public comment and must be approved by the commission before it is finalized, it gives a clear vision of the agency’s roadmap for future enforcement. With the EEOC’s recipe for enforcement and targeted practices in hand, employers should consider an updated audit of their own employment practices.