EEOC ADOPTS 2013-2016 Strategic Enforcement Plan

On December 17, 2012, the Equal Employment Opportunity Commission (“EEOC”) adopted a Strategic Enforcement Plan (SEP) that (1) establishes its priorities for the next four fiscal years and (2) integrates all components of the EEOC’s private, public, and federal sector enforcement. The SEP was adopted after a public comment period had expired on a previously published draft plan. According to the EEOC, the purpose of the SEP is to “focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace.” In so doing, the EEOC identified six national priorities for the 2013-2016 fiscal years:

1. Eliminating Barriers in Recruitment and Hiring. The EEOC will target class-based recruitment and hiring practices which discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.

2. Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.

3. Addressing Emerging and Developing Issues. The EEOC will target emerging issues in equal employment law, including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations.

4. Enforcing Equal Pay Laws. The EEOC will target compensation systems and practices that discriminate based on gender.

5. Preserving Access to the Legal System. The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts.

6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach. The EEOC will pursue systemic investigations and litigation and conduct a targeted outreach campaign to deter harassment in the workplace.

The EEOC intends to allocate the necessary budgetary resources for fiscal years 2014 – 2017 to align with the SEP.

The national priorities of the SEP outlined above will be complemented by district and federal sector priorities, which will take into consideration those issues which are most salient to each area. The EEOC has directed its General Counsel and the Director of the Office of Field Programs, each District Office Director and Regional Attorney, in consultation with Field, Local, and Area Office Directors in their district, to develop a District Complement Plan to the SEP by March 29, 2013. At a minimum, those plans are required to: 1) identify how the office will implement the SEP priorities; 2) identify local enforcement priorities, including areas for systemic investigation and litigation and strategies for addressing them; and (3) identify strategies for collaborative legal and enforcement efforts.

What does this mean for employers?

Employers should review their policies to assure compliance with the myriad of employment laws related to their employment practices. For instance, considering that the EEOC recently issued guidance on the use of criminal background information, it is likely that the EEOC will focus its attention on an employer’s use of background checks in the hiring process. Specifically, if a company decides to use a prior conviction to disqualify an applicant from employment, it must ensure that it applies such practice consistently, and that the reason for the disqualification is job-related and consistent with business necessity.

Employers should also note the EEOC’s emphasis on enforcing equal pay laws. For pay claims, the EEOC does not necessarily need an individualized complaint from an employee to initiate an investigation, but can file directed charges or commissioner charges as a means of enforcement. Because of this, the agency may not focus on a specific employee’s pay, but rather may look at the pay practices for the entire workforce. Employers should audit their compensation systems on at least an annual basis to assure that any potential areas of concern are addressed before they fall under the scrutiny of the EEOC. We encourage clients to consult with counsel to conduct such audits so that they are arguably protected by the attorney-client privilege.

Indeed, in light of the aggressive enforcement agendas of the EEOC and other federal agencies, a thorough audit of all employment practices is highly recommended. Such proactive efforts will go far to minimize the consequences should the EEOC or another federal agency come knocking. Please contact your counsel with questions about conducting an employment practices audit.

David J. Kramer
Kelli P. Lieurance
Follow Kelli on Twitter (@Employ_attny) for breaking employment law news!

Read the Full Newsletter: Labor & Employment Law Alert January 23, 2013