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EEOC strategic plan provides roadmap for enforcement priorities

January 2nd, 2013  |  Pamela Wolf

The EEOC has provided a roadmap to its enforcement priorities via its Strategic Enforcement Plan (SEP) for fiscal years 2013 through 2016. Going forward, the commission will be using a targeted, integrated approach to advancing a set of identified national priorities. Under this approach, national priorities will receive a greater share of the agency’s time and resources as the commission carries out its statutory obligations.

National priority criteria. Understanding how the EEOC determined its national priorities provides some insight into where the agency is headed in the next several years. The commission used several criteria for identifying its priority list for national enforcement in the private, public, and federal sectors. It sought to identify issues that:

  • will have broad impact because of the number of individuals, employers or employment practices affected;
  • involve developing areas of the law, where the commission has particularly salient expertise;
  • affect workers who may lack an awareness of their legal protections, or who may be reluctant or unable to exercise their rights;
  • involve discriminatory practices that impede or impair full enforcement of employment antidiscrimination laws; and
  • may be best addressed by government enforcement, based on the EEOC’s access to information, data, and research.

Recruitment and hiring. In order to eliminate systemic barriers in recruitment and hiring, the EEOC intends to “target class-based intentional recruitment and hiring discrimination and facially neutral recruitment and 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 checks, and date-of-birth inquiries.

Because of its access to data, documents and potential evidence of discrimination in recruitment and hiring, the EEOC believes that it is better situated to address these issues than are individuals or private attorneys, who have difficulties obtaining such information.

Immigrant, migrant and other vulnerable workers. The EEOC intends to target disparate pay, job segregation, harassment, trafficking and other discriminatory practices and policies affecting immigrant, migrant and other vulnerable workers. These individuals, according to the SEP, are often unaware of their rights under equal employment laws, or are reluctant or unable to exercise them.

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

  • ADA Amendments Act (ADAAA) issues, particularly coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat;
  • accommodating pregnancy-related limitations under the ADAAA and the Pregnancy Discrimination Act; and
  • coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.

Enforcement of equal pay laws. The commission also plans to focus on compensation systems and practices that discriminate based on gender. Here, among other strategies, the commission “particularly encourages the use of directed investigations” as well as commissioner charges to facilitate enforcement.

It’s worth noting that the commission has launched pilot programs at some of its district offices to figure out the best approach to using its authority to conduct directed investigations — these are initiated without any prior charge of pay bias — to determine whether Equal Pay Act violations are occurring.

Access to the legal system. Here the commission will target policies and practices that discourage or prohibit exercise of rights under employment discrimination statutes, or that impede the agency’s investigative or enforcement efforts. Targeted policies and practices 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 discrimination claims, and failure to retain required records.

Preventing harassment. The SEP notes that harassment is one of the most frequent complaints raised in the workplace. While investigation and litigation of harassment claims has been successful, the EEOC contends that a more targeted approach focusing on systemic enforcement and an outreach campaign to educate employers and employees will greatly deter future violations.

Priority treatment. Charges that involve these national priority areas will receive the highest priority in case handling, and will be given precedence in litigation case selection and in the systemic program, according to the SEP. 

Internal audit. Smart employers will conduct an internal audit to determine the extent to which their policies and practices are in compliance with federal laws pertaining to the priority areas identified in the EEOC’s SEP. The commission is poised to use its resources in a more targeted, efficient and effective way, particularly with regard to recruiting and hiring practices and equal pay violations. In these particular areas, the EEOC will not necessarily wait for employees to complain since it can rely on data obtained through other channels — employers would be wise to follow suit.

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