By Russell W. Jackson
The EEOC recently updated its strategic enforcement plan for 2017-2012. While the newly prepared strategic enforcement plan focuses on similar initiatives as the previous plan (2013-2016), there are minor modifications regarding its priorities, of which employers should be aware.
The guiding principles of the plan are (1) a targeted approach, with focused attention on priorities where the government’s efforts can have strategic impact; (2) an integrated approach, including collaboration, coordination and consistency throughout the agency; and (3) accountability by taking ownership to achieve results with existing resources.
The EEOC identifies the following as its substantive area priorities:
Eliminating Barriers in Recruitment and Hiring. This is targeted toward class-based recruitment and hiring practices that may discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities. The EEOC will focus on exclusionary policies and practices, discriminatory steering practices, job segregation, restrictive application processes (including online systems that may be inaccessible to individuals with disabilities) and screening tools that disproportionately impact workers based on their protected status.
Protecting Vulnerable Workers from Discrimination. These efforts will include reviewing disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers, including immigrant and migrant workers and those in underserved communities who may be unaware of their rights, or reluctant or unable to exercise them. The district offices and the federal sector program will identify vulnerable workers and underserved communities within their areas. As one example, the EEOC has indicated that discrimination against members of Native American tribes could be a focus.
Addressing Selected Emerging and Developing Issues. The EEOC has listed specific issues it intends to monitor: qualification standards and leave policies affecting disabled workers; accommodating pregnancy-related limitations; protecting members of the lesbian, gay, bisexual and transgender (LGBT) community; clarifying the protections afforded in complex employment relationships, including with temporary workers, staffing agencies and independent contracts; and addressing discrimination against those who are Muslim, Sikh, Arab, Middle Eastern or South Asian.
Ensuring Equal Pay Protections for All Workers. In addition to continuing to address gender pay disparities under the Equal Pay Act and Title VII, the EEOC will focus on compensation discrimination based on any protected status, including race, ethnicity, age or disability.
Preserving Access to the Legal System. The EEOC will focus on arbitration agreements, employers’ failure to maintain and retain required applicant and employee data, and retaliatory practices that dissuade employees from exercising their rights.
Preventing Systemic Harassment. Over 30 percent of EEOC charges allege harassment, most frequently sex, race, disability, national origin and religion, in that order. The EEOC states that promoting holistic prevention programs, including training, can significantly deter future violations.
Streamlining The Investigation
The EEOC reports that it currently has approximately 552 investigators, one-third fewer than it had in 2002. The investigators are responsible for handling roughly 90,000 charges per year. As of September 30, 2016, the EEOC had 73,000 charges, and the average time to resolve a charge currently exceeds 300 days.
In an effort to streamline its investigation of charges, the EEOC has instituted an online Digital Charge System, which allows faster transmittal of information and documents between the EEOC and the parties.
Charges that raise substantive area priorities or have the potential for strategic impact, and are categorized as “B” charges, must be reviewed expeditiously. “B” charges are those that initially appear to have merit, but require additional information.
The EEOC recognizes that Alternative Dispute Resolution (ADR) continues to be an important tool to promote timely resolution of discrimination charges. Charges classified as “A” (where an employer’s conduct is likely to be found in violation of the law) may be referred to mediation. District offices are encouraged to use pro bono mediators or law school clinics to expand the mediation programs.
Charges raising substantive area priorities and district priorities will be given precedence in determining which cases the EEOC should litigate. Charges outside the priorities that may have a strategic impact may also be considered for litigation.
In an effort to integrate its efforts throughout the agency, the EEOC’s strategic plan requires consultation between investigative and legal enforcement staff during investigations and conciliations.
The procedures instituted by EEOC to investigate charges and adjudicate federal sector complaints are intended to be transparent and uniform throughout the country to enable parties to effectively participate in the systems. The online portal should facilitate more consistent procedures and provide a dependable level of service. The EEOC has also implemented a practice permitting charging parties to request and respond to respondent position statements during the investigation.
Tips for Employers
Employers may have already seen the effects of the previous strategic enforcement plan and should expect those to continue. Companies should review the EEOC’s substantive areas to determine any potential exposure in those areas. Such an assessment should include evaluating specific policies in light of the priorities and: reviewing guidelines affecting leave, LGBT rights, and temporary employees; seeking guidance relating to waivers, releases, and arbitration provisions; analyzing potential joint employer relationships; determining whether hiring or recruiting efforts pose disparate impact exposure; evaluating compensation disparity issues; and ensuring compliance with record keeping requirements. Companies should remember that charging parties may now request and respond to position statements. Additionally, President Trump will likely cause a shakeup in the EEOC, including the appointment to several key positions, which could impact the strategic enforcement plan.