EEOC Issues Draft Strategic Enforcement Plan

Staying informed about employment law expectations offers a little stability in the ever-changing world of business ownership.

Businesses like predictability. This includes knowing what various government agencies may be looking for in enforcing their laws and regulations.

In September 2012, the U.S. Equal Employment Opportunity Commission (EEOC) released a draft Strategic Enforcement Plan (SEP) for Fiscal Years 2012 to 2016. The plan establishes priorities for the commission and integrates all components of its private, public and federal-sector enforcement. The EEOC describes certain nationwide priorities:

1. Eliminating systemic barriers in recruitment and hiring. The EEOC will target class-based, intentional hiring discrimination and facially neutral hiring practices that adversely impact particular groups. (A “facially neutral” practice is one that does not appear to be discriminatory on its face, but is discriminatory in its application or effect.)
2. Protecting immigrant, migrant and other vulnerable workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory language policies affecting these vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
   1. provided to similarly situated employees.
3. Addressing emerging issues. Emerging issues that the EEOC will target include:
   • ADA Amendments Act issues, particularly coverage issues, and the proper application of ADA defenses, such as 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; and
   • Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely
4. Preserving access to the legal system. The EEOC will also target policies and practices intended to discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts. These policies or practices include retaliatory actions, overly broad waivers, settlement provisions that prohibit filing charges with the EEOC or providing information in EEOC or other legal proceedings, and failure to retain records required by EEOC regulations.
5. Combating retaliation and harassment. The EEOC will refocus its efforts on a national education and outreach campaign aimed at both employees and employers, many of whom struggle with how to prevent and appropriately respond to retaliation and harassment in the workplace.

The SEP also discusses discrimination charges and litigation priorities, and the EEOC intends that its 15 district offices will prepare their own supplemental enforcement plans. SEP and district priority charges, except for individual disability, harassment and retaliation charges, are considered the highest-priority charges. Meritorious cases raising SEP or district priority issues will normally be given precedence in litigation recommendations and selection over non-priority issue cases. The EEOC 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. Meritorious systemic charges, investigations and cases that raise SEP priority issues will typically be given precedence over non-priority matters, whether individual or systemic.

The savvy employer will also obtain guidance from past events. The EEOC provides useful statistics for Fiscal Year 2011, as follows:

• A total of more than 6,000 discrimination charges were filed in the United States. Charges filed in Illinois constituted 6.1 percent of all charges filed in the country.
• There were nearly 2,000 charges alleging race discrimination. Charges filed in Illinois were 5.6 percent of all U.S. race discrim-ination charges.
• There were more than 1,300 charges alleging sex discrimination. Charges filed in Illinois alleging sex discrimination constituted 4.8 percent of the total U.S. charges.
• Claimants charged national origin discrimination more than 600 times. Charges filed in Illinois were 5.1 percent of all U.S. national origin charges.
• Charges alleging discrimination based on religion and color were less common. There were 192 charges alleging discrim- ination based on religion, and 148 based on color.
• There were more than 2,200 charges of age discrimination, and charges filed in Illinois accounted for 9.7 percent of all U.S. age charges.
• Charges alleging disability discrimination numbered more than 1,300 nationally, and charges filed in Illinois accounted for 5.2 percent.
• A smattering of charges alleged violations of the Equal Pay Act— a total of 50 nationwide—and 23 nationwide alleged violations of the Genetic Information Nondiscrimination Act. However, again, charges filed in Illinois were a disproportionate percentage; 5.4 percent of U.S. EPA charges and 9.4 percent of GINA charges.
• Finally, charges alleging retaliation continue to be common. Nearly 2,000 charges alleging all types of retaliation were filed in FY 2011, and of those, 5.2 percent were filed in Illinois. A great percentage of the retaliation charges alleged violations of Title VII; 1,589 such charges were filed nationally, and 5.1 percent of those were filed in the State of Illinois.

Employers are well advised to ensure that their employment practices follow the law, particularly in the areas the EEOC has designated as priorities. iBi

Michael Lied is an attorney with Howard & Howard Attorneys, PC, representing employers in the areas of labor and employment law and related litigation and immigration law.