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In the aftermath of the election, all employers should be mindful of the Equal Employment Opportunity Commission’s ("EEOC") recently announced Strategic Enforcement Plan ("SEP") for 2013 – 2016. On December 17, 2012, the EEOC approved the Plan in a 4-1 vote (commissioner Barker voting against). The final SEP updated and modified the draft SEP that was issued earlier in 2012. The plan establishes priorities for the EEOC in enforcement, investigation, research, and education. The Commission stated that the guiding principle for the SEP is the agency's belief that "targeted enforcement efforts will have the broadest impact to prevent and remedy discriminatory practices in the workplace" and to help the agency "make the best use of limited resources."
The areas identified for Nationwide Priorities are:
Eliminating Barriers in Recruitment and Hiring - The EEOC will target "class-based intentional recruitment and hiring discrimination and facially neutral recruitment and hiring practices that adversely impact particular groups."
The EEOC provided examples of discriminatory practices including channeling/steering individuals into specific jobs due to status in a particular group, restrictive application processes, and the use of screening tools (e.g., pre-employment tests, background checks, and date of birth inquiries). This priority is in line with the EEOC's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions issued in April 2012, and its December 2007 Fact Sheet on Employee Tests and Selection Procedures, which addressed screening criteria such as credit checks (which the EEOC views with similar suspicion to arrest or conviction records), cognitive tests, and medical examinations, among others. There has for some time been pressure within and without the EEOC for the Commission to focus more enforcement efforts on hiring and recruitment, and this priority reflects an apparent effort to sharpen the Commission's focus in that area.
Protecting Immigrant, Migrant, and Other Vulnerable Workers - The EEOC will target "disparate pay, job segregation, harassment, trafficking and discriminatory practices and policies" that affect workers who may not be aware of the equal employment laws or who may be reluctant to exercise their legal rights. The EEOC has continued to pursue policies that it believes prevent immigrants from having equal access to employment, such as, for example, English-only policy or policies that require spoken English as a job criterion when it has a disparate impact and is not job related and consistent with business necessity. This priority reflects that continued emphasis, as well as the EEOC's role in combatting human trafficking through enforcement of equal employment laws.
Addressing Emerging and Developing Issues - The EEOC plans to target the following issues:
1) Americans with Disabilities Act Amendments (ADAAA) issues such as coverage issues and the proper application of ADA defenses.
The ADAAA's broadened definition of disability and the EEOC's effort to get employers to focus on accommodation rather than coverage, make this an obvious area for continued EEOC emphasis.
2) Lesbian, gay, bisexual, and transgender (LGBT) coverage under Title VII sex discrimination.
On April 20, 2012, the EEOC took the position that discrimination against an individual because that person is trangender is discrimination because of sex under Title VII. Macy v. Dep't of Justice, EEOC Appeal No. 0120120821.
3) Accommodating pregnancy-related limitations under the ADAAA and Pregnancy Discrimination Act.
The EEOC made clear that the list is non-exhaustive and additional emerging or developing issues may be identified. The EEOC believes that, in light of the broader coverage of conditions under the ADA Amendments Act, there will be more accommodations in the workplace. As a result, there could be issues related to accommodating workers who become, are, or have recently been pregnant, even if they are not disabled under the ADAAA. There also may be more pregnancy-related conditions that qualify as disabling under the broadened definition of disability, which could lead to additional accommodation issues.
Enforcing Equal Pay Laws - The EEOC will target gender-based compensation systems and practices. The EEOC's ability to demand significant data in its investigations backed up by its broad subpoena power, coupled with a reinvigorated focus on compensation discrimination in the wake of the Lilly Ledbetter Fair Pay Act, and the concerns over persistent glass-ceiling issues, make this an area of focus. For employers who have not conducted a statistical employment pay and practices analysis in some time, the EEOC identifying this area should serve as a nudge to consider conducting an audit sooner rather than later.
Preserving Access to the Legal System - The EEOC will focus on policies and practices that discourage or prohibit individuals from exercising their rights including retaliatory actions, overly broad waivers, settlement provisions that prohibit filing EEOC charges or providing information in EEOC or other legal proceedings, and failure to retain records required by EEOC regulations. The EEOC has long taken the position that it is unlawful to include in settlement agreements a prohibition on filing or assisting with a charge. The EEOC has also has issued as recently as July 2009 a question and answer document on waivers of discrimination claims in severance agreements. The EEOC apparently considers these issues still sufficiently problematic that it has included this priority.
Preventing Harassment - The EEOC noted that because of persistent workplace harassment, it will utilize a systematic enforcement plan and an outreach campaign to curtail workplace harassment. The EEOC brings multiple cases each year alleging "class" harassment, and because it is not subject to the strictures of Federal Rule of Civil Procedure 23, it does not have the same threshold challenges to pursuing such a claim that a private plaintiff would.
The EEOC's workload is driven primarily by the charges filed by individuals, so the discrimination issues it investigates are largely outside of its control, with the exception of Commissioner charges and directed investigations. The SEP nevertheless provides insight on how the EEOC will attempt to allocate its resources. Along with the SEP's list of priorities, the EEOC has instructed its field offices to submit regional plans consistent with the SEP. Therefore, employers should expect that if they have a charge that hits on one of the areas within the SEP, the EEOC's investigators will be expected to give that charge particular focus and attention, and it may even be a charge that gets the attention of the legal unit. Thus, charges should be evaluated carefully to determine if they may fit within one of the areas of priority, and employers should respond to such charges strategically, with the idea in mind that the charge could be one that the EEOC would like to take to litigation.