Last week I introduced the Equal Employment Opportunities Commission (EEOC) and their Strategic Enforcement Plan (SEP). You may recall that the Commission identified three objectives for their Strategic Plan:
- Combat employment discrimination through strategic law enforcement;
- Prevent employment discrimination through education and outreach;
- Deliver excellent and consistent service through a skilled and diverse workforce and effective systems.
The first objective led to the development of the Strategic Enforcement Plan. The two requirements for the plan were first, to establish EEOC priorities and second, to integrate the agency’s investigation, conciliation and litigation responsibilities in the private, state and local government sectors; adjudicatory and oversight responsibilities in the federal sector; and research policy development, and education and outreach activities.
The EEOC plan also established Guiding Principles. In their principles they state:
The Commission is guided by the belief that targeted enforcement efforts will have the broadest impact to prevent and remedy discriminatory practices in the workplace.
This indicates that the Commission believes there are still discriminatory practices in the workplace and are interested in spreading the broadest net possible to secure compliance.
So this is where things get personal. Hopefully your agency has cleaned house and done what it can to comply with all the federal legislation that impacts employee recruitment, selection, promotion, pay and retention.
It is the hope of the Commission that for agencies responsible for enforcement under the EEOC umbrella, that targeting will shift the enforcement paradigm from complaint-driven to priority driven. It is the intention that targeted enforcement will provide agency leadership and staff with clear guidance regarding the appropriate allocation of what they consider their limited resources. Again, applying this to your agency, it would appear that the EEOC would not need to receive a complaint about your agency, but rather could include you in a targeted enforcement plan if they consider the issue being targeted to be present in your agency.
Along with establishing priorities and targeting the top categories for enforcement, the Commission has established an Integrated Approach to ensure the full use of its communications, outreach, education, training, research and technology as tools to further the agency’s mission in cooperation with administrative enforcement (investigations, mediations and conciliations) and legal enforcement (litigation).
In establishing their SEP, the Commission also looked at their previous efforts to, “establish priorities, integrate enforcement, and manage the charge inventory. This involved a review of their previously published documents which included: the National Enforcement Plan, Priority Charge Handling Procedures, Comprehensive Enforcement Program, and Systemic Task Force Recommendations.” Putting it in other terms, the Commission is taking what it has learned from the past and doing what they can to have a lean and efficient agency that can have the greatest impact on eliminating illegal discrimination in the workplace.
Under such an approach, establishing priorities for investigation and enforcement action will play a critical role in the plan. One priority, “hiring discrimination,” was listed as an example in the plan, so that should be a heads up to all agencies that hiring discrimination will be an area for targeted enforcement. Further, the commission identified their priorities for enforcement using the following criteria:
- Issues that will have broad impact because of the number of individuals or employers affected;
- Issues involving developing areas of the law, where involvement by the leading governmental agency charged with enforcing employment anti-discrimination laws is appropriate;
- Issues affecting workers who may lack an awareness of their legal protections, or who may be reluctant or unable to exercise their rights;
- Issues involving discriminatory practices that impede or impair full enforcement of employment anti-discrimination laws; and
- Issues that may be best addressed by the EEOC, given its access to data and research.
Reviewing these criteria provides you with a check list for reviewing your employment practices and procedures. If you have or have been known to have difficulties in any areas that would fall under this very large umbrella, you should be aware that you could be placed in the group for high priority targeted enforcement. In particular, that is why number one is bold in the criteria list above. It is clear that the Commission is going to make it a priority to go after areas that include large numbers of people and/or large numbers of employers.
After setting the criteria for establishing priorities, the SEP goes on to identify its Nationwide Priorities which currently include:
- Eliminating Systemic Barriers in Recruitment and Hiring;
- Protecting immigrant, migrant and other vulnerable workers;
- Addressing Emerging Issues;
- Preserving Access to the Legal System; and
- Combating Harassment.
The SEP also identifies the emerging issues that the EEOC will target. Targeted emerging issues include:
- ADA Amendments Act issues with focus being on coverage and the application of ADA defenses like undue hardship, direct threat, and business necessity.
- LGBT (lesbian, gay, bisexual, and transgender individuals) coverage under Title VII sex discrimination provisions as they may apply.
- Accommodating pregnancy in situation where women have been forced to take unpaid leave and denied accommodations routinely provided similarly situated employees. (Certainly similarly situated employees will require some research and defining.)
The plan includes a set of guidelines for implementation of the SEP national priorities. To underscore their intentions, the EEOC states that the guidelines are, “to ensure SEP priorities receive the appropriate level of agency resources and achieve the goals of a targeted and integrated national law enforcement approach.” As stated previously and repeatedly in the SEP, “identifying priorities for targeted enforcement is a critical tool for strategically managing investigations and guiding case selection.” In that regard, the SEP is intended to guide prioritization of investigations and case selection. In addition to criteria listed earlier and the list of emerging issues included in the SEP and this article, the SEP states that, “The pursuit of any investigation or case must be guided first and foremost by the strength of the evidence and its potential as a vehicle for strong law enforcement.”
The SEP goes on to say that, “Charges or cases should not be pursued, even if they fall within a priority category, unless rigorous assessment of the merits determines significant law enforcement potential.” This suggests that the EEOC is interested in pursuing cases that meet their enforcement criteria that can include multiple jurisdictions and make an example of them to the degree that the actions of the EEOC can have a significant impact on reducing what they have identified as discriminatory HR practices. It also suggests that if your agency has some questionable practices, but there is not significant evidence of wrong doing, they may not pursue action against your agency. Another reason to ensure your practices are compliant and you have documentation to support your processes and procedures.
Step one in the SEP implementation procedures establishes implementation of Priority Charge Handling Procedures (PCHP). While the PCHP focuses primarily on EEOC’s internal procedures, there are some statements made in this section that are worth noting. Under their procedures, the EEOC will be designating all charges as “Category A” charges initially and then evaluating the designation as further information is obtained. Within, the “Category A” charges, the SEP states that harassment and retaliation charges are the highest priority. Also, in keeping with the underlying goals of the SEP, it states that individual disability, harassment and retaliation charges should only be categorized as “Category A” charges if they present strong vehicles for development of the law. Making it clear once again that the EEOC is out to make case law.
The other two aspects of the Implementation of SEP National Priorities include their Litigation Program and their Systemic Program. The Litigation Program outlines the use of resources in determining cases to litigate and encourages collaboration with state and local partners, the private bar, and non-profit organizations to support their role in civil rights enforcement. The Systemic Program is another commitment to the themes of strong law enforcement and significant law enforcement. Under this section, the SEP states the Commission reaffirmed the importance of eradicating systemic discrimination and recognized that systemic enforcement continues to be a top priority for the agency. It is important for practitioners to know that the Commission defines systemic cases as pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, occupation, business or geographic area.
The SEP goes on to establish Strategic Enforcement Teams and outlines District Complements to the SEP. It also emphasizes that the priorities lay out the vision for the EEOC operating as a whole encompassing the EEOC’s 15 district offices and 38 field, area and local offices as integral components to the SEP’s implementation at the local level.
While, I’ve attempted to identify the highlights of the SEP and point out areas that should be of interest to local agencies, I also want to point out that it would be good for individual practitioners to read the Plan. Overall, it can be seen that the focus is on prioritization of cases to maximize the use of their resources to have the broadest impact possible of achieving their goal of eradicating illegal discrimination in the work place. In that regard, it should also be clear that they are interested in making a statement regarding “strong law enforcement.” In particular, agencies should be aware of the priorities regarding:
- Hiring discrimination,
- Issues that have broad impact because of the number of individuals or employers affected,
- Issues affecting workers who may lack an awareness of their legal protections,
- Class based intentional hiring discrimination;
- Facially neutral hiring practices that adversely impact particular groups
- Exclusionary policies, restrictive application processes and the use of screening tools that adversely impact racial and ethnic minorities, older workers, women and people with disabilities;
- Protecting immigrant, migrant and other vulnerable workers,
- Handling emerging issues in regard to legislation and protection for lesbian, gay, bisexual and transgender individuals,
- Retaliation, and
- Systemic issues.
This list and the plan make it clear that the EEOC has a full plate and that means that those responsible for making sure that their agency does not have practices that would fall into the category of illegal discrimination has a full plate as well. As a practitioner, the SEP should serve as a guideline for you in establishing areas within your agency that fall within the EEOC’s priorities and ensuring that these areas are compliant. In that regard, the EEOC, through this document, is utilizing their role as an educator: their concerns should be yours, as well.