The Equal Employment Opportunity Commission has announced the final approval of its 2013-2016 Strategic Enforcement Plan (“SEP”). This is a revised version of the draft SEP the EEOC issued on September 4, 2012. Consistent with the draft SEP, in the final SEP, the EEOC announces that its number one enforcement priority for the next four years will be targeting class-based recruitment and hiring discrimination.
The priorities listed by the EEOC are as follows:
1.Eliminating barriers in recruiting and hiring. As part of this effort, the agency will also focus on exclusionary policies and practices that allegedly steer individuals into specific jobs due to their status in a particular group.
2.Protecting immigrant, migrant and other vulnerable workers. The EEOC lists disparate pay, job segregation, harassment and human trafficking as particular practices it will pursue vigorously.
3.Addressing emerging and developing issues. These include:
a) Americans with Disabilities Act reasonable accommodation, coverage, qualification standards, and employer’s use of the undue hardship and the direct threat defense.
b) Accommodating pregnancy-related limitations under both Title VII of the Civil Rights Act and the ADA; and
c) Seeking protection for lesbian, gay, bisexual and transgender individuals under Title VII.
4.Enforcing the equal pay laws through the use of “directed investigations” and Commissioner Charges.
5.Preserving access to the legal system, which includes proceeding against employers who engage in retaliatory practices or use overly broad settlement waivers.
6.Preventing harassment through both litigation and educational outreach.
The SEP was approved by three of the current four sitting Commissioners: Chair Jacqueline Berrien (D), Commissioner Chai Feldblum (D), and Commissioner Victoria Lipnic (R). Commissioner Constance Barker (R) voted against approving the SEP.
While the draft SEP contained a more limited menu of the EEOC’s priorities, the final SEP is closer to a smorgasbord. In its draft SEP, the EEOC indicated that harassment and retaliation would no longer be enforcement priorities, but rather those forms of discrimination would be addressed through a preventive outreach program. The final SEP indicates the EEOC will continue to investigate and litigate harassment and retaliation claims aggressively. Similarly, the draft SEP list of priorities made no mention of reasonable accommodations under the ADA or equal pay laws, and gave little mention to the Age Discrimination in Employment Act. These issues are mentioned prominently in the final SEP.
After the EEOC issued its draft SEP in September, Jackson Lewis provided the EEOC with the Firm’s Comments. In its Comments, Jackson Lewis suggested it would be counterproductive for the EEOC to embark on an aggressive systemic enforcement plan without first putting in place processes that would ensure the EEOC investigations would be consistent and efficient. In its final SEP, the EEOC acknowledges its need to more carefully integrate agency roles and provide consistency among district offices. Pursuant to the final SEP, Chair Berrien will appoint Strategic Enforcement Teams to recommend strategies that will result in integrated and comprehensive EEOC strategies. Additionally, each EEOC district office will be required to develop a District Complement Plan by March 29, 2013. These Plans will identify local enforcement priorities and strategies for collaborative legal/enforcement efforts.
Although it is not clear that the EEOC will achieve its goals of consistency and integration, the EEOC will continue to pursue large systemic cases actively. In particular, the EEOC is scrutinizing employers who use screening tools that might have a disparate impact against particular groups. The EEOC’s final SEP confirms the agency’s intention to pursue large, nationwide investigations and lawsuits against employers using screening tools that may result in adverse impact. The SEP specifically lists pre-employment tests, background checks and date-of-birth questions on applications as employer practices which will draw the agency’s attention. When these screening tools are used on a nationwide basis, the EEOC will demand access to large data sets that are likely to lead to statistical indicators of potential systemic discrimination. We expect the EEOC to seek nationwide data from employers in such cases with the goal of uncovering systemic discrimination.
Jackson Lewis attorneys are available to provide advice on whether the use of candidate selection tools may be problematic under the EEOC’s new SEP. Moreover, to the extent an employer is faced with an EEOC investigation or lawsuit challenging the use of such tools, Jackson Lewis is available to defend such investigations and lawsuits. Please contact the Jackson Lewis attorney with whom you regularly work.