EEOC Outlines Priorities in Draft Strategic Enforcement Plan

News Updates

Only in the government would a strategic plan be adopted in order to develop a strategic enforcement plan, which was the case when the U.S. Equal Employment Opportunity Commission (EEOC) adopted a strategic plan earlier this year.

On Sept. 4, 2012, the agency released a draft strategic enforcement plan, highlighting the agency’s national priorities:

  • Eliminating systemic barriers in recruitment and hiring.
  • Protecting immigrant, migrant and other vulnerable workers from job segregation, trafficking and discriminatory language policies.
  • Addressing emerging issues.
  • Preserving access to the legal system.
  • Combating harassment, which the agency said remains “pernicious and direct” and occurs on the basis of race, color, sex, ethnicity, age, disability and religion.

Recruitment Barriers

“The EEOC will target class-based intentional hiring discrimination and facially neutral hiring practices that adversely impact particular groups,” the agency stated. “Racial and ethnic minorities, older workers, women, and people with disabilities continue to confront discriminatory policies and practices at the recruitment and hiring stages.”

The agency said these discriminatory policies include:

  • The channeling/steering of individuals into specific jobs due to their status in a particular group.
  • Restrictive application processes.
  • The use of screening tools (e.g., background screens and date-of-birth screens in online applications) that adversely impact protected groups

Emerging Issues

Current emerging issues the agency plans to target include:

  • Americans with Disabilities Act Amendments Act (ADAAA) issues, such as who has a covered disability under the ADAAA’s expanded definition of “disability.”
  • Accommodating pregnancy when women have been forced to take unpaid leave after being denied accommodations routinely provided to similarly situated employees.
  • Lesbian, gay, bisexual and transgender individual coverage under Title VII sex discrimination provisions, as they may apply. The agency noted that in Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), the commission took the position that discrimination against an individual because that person is transgender is discrimination because of sex. Courts have held that Title VII prohibits discrimination based on gender stereotyping, but does not prohibit discrimination based on sexual orientation. Many companies, however, have voluntarily barred sexual orientation discrimination in their equal employment opportunity policies.

Access to Legal System

The agency also will target practices that discourage individuals from exercising their rights, such as 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.

EEOC regulations require employers to keep employment records for a year. If someone is terminated, the records must be kept for one year from the date of termination. Under the Age Discrimination in Employment Act, employers must keep all payroll records for three years. Because of the Lilly Ledbetter Act, some employment lawyers recommend keeping employment records much longer.

The draft strategic enforcement plan also noted that the EEOC should support private enforcement of anti-discrimination laws. The cash-strapped agency filed only 261 lawsuits on the merits in fiscal year 2011, though an increasing number of its cases are high-profile systemic or class litigation. During the calendar year for 2011, 16,879 federal lawsuits were filed by private litigants under the federal civil rights laws.

“To better assist those charging parties whose charges are not pursued by the EEOC, district offices may provide referrals to local and state bar associations,” the draft plan stated. A more publicized U.S. Department of Labor attorney referral system—approved by the American Bar Association and unveiled at the end of 2010—has raised concern among some management attorneys.

Enforcement Consistency

The EEOC’s draft strategic enforcement plan also would ensure more-consistent and timely agency operations across its 53 offices around the country. Consistency and timeliness are “critical to the agency having a credible and effective enforcement program,” the draft plan noted.

The EEOC is accepting comments on the draft plan through 5 p.m. ET Sept. 18, 2012, at strategic.plan@eeoc.gov. The commission plans to vote on the plan at the end of this fiscal year, which concludes Sept. 30, 2012.

Allen Smith, J.D., is manager, workplace law content, for SHRM. To read the original article, please click here.