On December 17, 2012 the U.S. Equal Employment Opportunity Commission (EEOC or Commission) approved its Strategic Enforcement Plan (SEP or Plan) for Fiscal Years 2012 through 2016. The Plan is designed to implement strategic priorities, integrate the Commission’s various sectors, activities, and departments, prevent discrimination through education, and provide consistent and effective service. The EEOC’s aggressive plan lays out the agency’s four-year focus with realistic guidance and an understanding of limited resources.
II. National Priorities:
The EEOC’s approach reiterated its focus on systemic discrimination and established six national priorities, as follows:
1. Eliminating Barriers in Recruitment and Hiring
- The Commission plans to target class-based recruitment and hiring practices. The EEOC noted that this priority includes exclusionary policies and practices, “channeling/steering” persons into particular positions due to their protected trait, restrictive application processes, and screening tools for employment.
2. Protecting Immigrant, Migrant and Other Vulnerable Workers
- The Commission will focus on discriminatory policies and trafficking that affects vulnerable populations. These populations are particularly susceptible to abuse because they do not know or understand their rights under the law or are afraid or unable to exercise them. It will also target job segregation, unequal pay, and harassment.
3. Addressing Emerging and Developing Issues
- The Commission stated that it will focus on issues driven by demographic changes, significant events, new legislation, and judicial and administrative decisions. It recognized the following developing issues: age discrimination, accommodating pregnancy-related limitations, coverage of LGBT persons under Title VII, and the attacks on September 11. The Strategic Enforcement Team for Emerging or Developing Issues is tasked with identifying new concerns and providing recommendations when issues are no longer considered a priority.
4. Enforcing Equal Pay Laws
- The Commission emphasized its focus on combatting discrimination based on gender.
5. Preserving Access to the Legal System
- The Commission will target policies and practices that discourage or prohibit individuals from exercising their rights or disrupt investigative or enforcement efforts. This requires a close analysis of retaliatory actions, broad or vague waivers, provisions in settlement cases that prohibit filing EEOC charges or assisting in the investigation or prosecution of claims, and failure to maintain books and records required by EEOC regulations.
6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach
- The Commission stated that harassment is one of the most frequent complaints at the workplace. It will pursue systemic enforcement and targeted outreach to prevent and deter harassment.
The EEOC has made clear that cases which fall under a prioritized issue listed above should not be pursued unless the merits of the case have been assessed. The EEOC maintains that it is well positioned to address employment discrimination issues and determine which cases are meritorious.
The EEOC requested a budget of $373 million for the 2013 Fiscal Year. Using this budget, the Commission plans to implement the following: (1) priorities in administrative enforcement and legal enforcement in the public and private sectors; (2) strategic enforcement teams; and (3) district and federal complements to the Plan.
The EEOC will prioritize administrative and legal enforcement through Priority Charge Handling Procedures (PCHP), which will reduce pending inventory charges, manage new cases, and ensure priority cases are given the proper attention. The EEOC will address the Plan and district priorities when it selects cases and becomes involved through other means such as participating as amicus curiae. Enforcement plan cases are the most important and are screened swiftly to determine if a charge has merit. If a case does have merit, the charge will be designated the highest category in the PCHP. Cases that involve systemic charges and raise priorities discussed take precedent – eradicating systemic discrimination has been and continues to be a focus of the EEOC.
The Commission also recognizes the success of alternative dispute resolution (ADR) programs and acknowledges their critical role in resolving complaints. Additionally, the Chair is required to appoint Strategic Enforcement Teams to identify strategies and recommend evaluations that analyze effectiveness. Furthermore, the district office directors, regional attorneys, the Office of Federal Operations and the Office of Field Programs are required to develop a plan that complements the SEP. The complement must include how the sector plans to implement the SEP priorities, identify specific or local enforcement priorities for addressing the SEP, and make recommendations regarding collaboration, oversight, and consistency.
Throughout the SEP, the EEOC emphasizes the need for an integrated approach and states that outreach, education, and training must work closely with administrative and legal enforcement. The Commission also acknowledges the need for consistency and accountability within the EEOC and the need to coordinate efforts between the EEOC and nonprofit, private partners, and federal, state, and local government. It appears that the most important goal for the EEOC is for the SEP to achieve a broad and lasting impact. The Commission believes this is possible through integrating enforcement, education, and research efforts.
The EEOC provides seven areas it seeks to integrate. First, the Commission reaffirmed the importance of collaboration and communication between investigative and legal enforcement staff. It also reemphasized systemic enforcement through its Committee of Advisors on Systemic Enforcement (CASE). Integrating the public and private sectors administrative and legal enforcement is a clear priority to the EEOC. Second, the Commission focused on integrating federal sector activities and called for an evaluation of the hearings program. Specifically, the Commission requests recommendations regarding Administrative Judges’ placements and other factors affecting the success of the program. Third, the Commission emphasized integrating education and outreach activities. The Office of Legal Counsel was tasked with creating a plan to review and update priorities and guidance, and a plan for nationwide communication and outreach. The SEP also set out goals of integrating field offices and outside organizations to increase and streamline enforcement.
As its fourth step, the Commission requested integration of research, data, and enforcement and mandated various offices develop a multi-year plan that identifies research needs, including an integrated approach to facilitate communication and collaboration between all EEOC offices. Fifth, the Commission set a mission to increase collaboration with state and local fair employment practice agencies, and asked the office of Field Programs to consult and engage with state and local fair employment agencies. Sixth, the EEOC called for support of private enforcement of the federal anti-discrimination laws. The EEOC filed 261 lawsuits on the merits in 2011, while employees privately filed 16,879 federal lawsuits under the federal civil rights statutes in 2011. Private enforcement is critical part of enforcing federal anti-discrimination laws and the Commission strongly encourages it. Lastly, the Commission emphasized consistent service to individuals and cooperation from its headquarters and 53 field offices; to accomplish this, the EEOC requested a revision of the national standard operating procedures, practices, and processes.
The Plan is effective October 1, 2013 through September 30, 2016. Through the SEP, the Commission has created a focused, targeted, and integrated approach that it believes leads to a more aggressive and accountable agency. The national priorities outlined in the SEP foreshadow the increased scrutiny and focus of the EEOC. Over the next four years, the Commission’s limited resources will require the agency to remain focused on systemic discrimination cases to fulfill its mission to efficiently and effectively combat discrimination. The Commission’s focus in the SEP on policies and procedures that determine wages should serve as a warning to employers to scrutinize equal pay laws and their adherence to them. The EEOC’s reliance on education and outreach to prevent discrimination will continue the agency’s proactive approach. Additionally, referrals to local agencies and private firms will help the Commission increase enforcement while its budget continues to decrease. The EEOC will also continue its sharpen retaliation enforcement and pursue ground breaking cases that private plaintiff attorneys are unwilling to, such as pregnancy discrimination under the Pregnancy Discrimination Act or obesity as a disability under the Americans with Disabilities Act.
Employers should revisit their employee handbooks, separation and settlement agreements, waivers, and employee contracts to ensure that they adhere to EEOC guidelines.
Nicole Saleem works for a civil rights organization in Washington, DC. She practices employment and immigration law.
 EEOC, UNITED STATES EUQAL EMPLOYMENT OPPORTUNITY COMMISSION STRATEGIC PLAN FOR FISCAL YEARS 2012 – 2016 (2012); available at http://www.eeoc.gov/eeoc/plan/strategic_plan_12to16.cfm, last visited March 14, 2013.