The EEOC's Strategic Enforcement Plan

1. Eliminating Barriers in Recruitment and Hiring

This priority is focused on class-based recruiting and hiring practices, particularly those that the Commission considers “systemic barriers,” which have a disparate impact on protected groups. In particular, the EEOC will look very closely at exclusionary policies or practices (such as inquiring about applicants' dates of birth or placing their pictures on applications), the “channeling” of individuals into specific jobs (for example, female applicants being steered to house-keeping jobs), and the use of “screening tools” such as criminal background checks, credit checks, or other pre-employment tests. Somewhat ominously, the EEOC notes in the SEP that it is “better situated” to pursue these subjects than are individuals or the private bar due to its greater access “to data, documents and potential evidence.”

2. Protecting Immigrant, Migrant and Other Vulnerable Workers

The EEOC's focus here relates to workers who may not be fully aware of the rights and protections afforded to employees under federal employment laws, or who may be reluctant or “unable” to exercise them. The EEOC intends to “target” instances of job segregation, harassment, human trafficking, and other discriminatory practices and policies, particularly including disparate pay, affecting immigrant, migrant and “other vulnerable workers,” although the SEP does not specifically identify who the “other vulnerable workers” might be.'

3. Addressing Emerging and Developing Issues

The third priority identified in the SEP is what the EEOC terms “emerging and developing issues.” The Commission cited the following as examples of issues in this category: 1) certain issues under the Americans with Disabilities Act Amendments Act (ADAAA), most notably issues relating to “coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat”; 2) accommodating pregnancy-related limitations under the ADAAA and the Pregnancy Discrimination Act (PDA); and 3) Title VII's sex-discrimination provisions applicable to lesbian, gay, bisexual and transgender individuals. In addition, the EEOC has observed that it may focus on other issues under this heading based on “significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations.” It appears that the EEOC intends here to leave itself sufficient latitude to address unforeseen events or other changes, such as the issue of religious discrimination following 9/11.

4. Enforcing Equal Pay Laws

This EEOC priority relates to compensation systems and practices that discriminate based on gender. Of particular significance, the EEOC specifically states that it intends to utilize directed investigations under the Equal Pay Act and Commissioner Charges under Title VII to “facilitate” enforcement of the equal pay laws. Particularly in light of the White House Equal Pay Task Force involving the Department of Justice (DOJ) and Department of Labor (DOL), as well as the EEOC, this is an area to which in-house counsel should pay a great deal of attention as it appears to be one that will generate intense scrutiny over the course of the next four to five years.

5. Preserving Access to the Legal System

The EEOC's interest in regard to this priority is “policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC's investigative or enforcement efforts.” Retaliation has become the largest category of charges filed with the EEOC, and the Commission has announced its intent vigorously to pursue apparent retaliation. Further, the EEOC includes in this category what it considers to be “overly broad waivers,” and settlement provisions that preclude an individual from filing a Charge of Discrimination or from assisting in the investigation or prosecution of other claims of discrimination.'

6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach

The final SEP priority relates to alleged harassment. The SEP notes that harassment is among the most frequent complaints raised in the workplace, particularly since, when combined, harassment claims based on race, ethnicity, religion, age and disability significantly outnumber even sexual harassment complaints. Over the last four years, over one-third of the Commission's systemic discrimination litigation has addressed alleged harassment. This national priority places an increased emphasis on how employers deal with harassment complaints, and the EEOC specifically now has stated that it will vigorously pursue systemic investigations and litigation of harassment allegations, as well as an outreach campaign to educate both employers and employees, to deter future violations. The Commission will be looking for cases of allegedly egregious harassment or inappropriate responses to internal complaints to determine which employers it will target for systemic enforcement.

How Can Employers Protect Themselves?

The EEOC's national priorities provide employers a tremendous opportunity. In the SEP, the Commission has outlined for every employer the areas on which the EEOC will target its enforcement efforts, highlighting the specific priorities upon which it will expend its time, money, and resources so as to have the broadest and most significant impact. If a Charge falls within one of the six priority areas, it will “receive increased investigatory attention and resources to ensure timely and quality enforcement action.”

For general counsel, the SEP in essence is a roadmap that allows employers to identify areas for review; it tells employers how to reduce the risk that they will become likely candidates for EEOC scrutiny and enforcement efforts. Particularly for large employers, since the EEOC now is intent on pursuing systemic, company-wide litigation related to issues that arise in these areas, a review and correction or modification of present practices or policies may result in multi-million dollar savings down the road. For smaller employers, avoidance of expensive investigations and enforcement actions likewise may have a similar impact. In-house counsel for companies of any size should promptly audit their practices and policies in the “national priority” areas identified by the SEP for the following (corresponding to the priority areas listed above).

Hiring

Have you reviewed your employment application and hiring process recently? The EEOC asks for the current employment application used by an employer in every investigation. Check your form to make sure you are not asking questions that would reveal age, ethnicity, or disability information. In addition, consideration of the following will reduce your risk of EEOC scrutiny on the hiring front: 1) Regularize your hiring process across locations; 2) Ensure that screening measures are being conducted by persons other than the decision-makers for the jobs at issue; and 3) If your company relies on conviction checks,review the recent EEOC Enforcement Guidance on use of criminal background checks (see http://tinyurl.com/75tb3vg) to compare your company's practices with those suggested in the “guidance.”

Evaluate whether there appears to be a disproportionate representation of one group or another in particular jobs, and determine whether this is a function of self-selection or if there perhaps is either intentional or unintentional steering of candidates to apply for certain positions.

If your company uses screening mechanisms of some sort or another, you may also want to evaluate (in as privileged a manner as possible) whether there appears to be any disparate impact related to the use of those mechanisms.'

Immigrant or Vulnerable Workers

Does your company have workers in these categories? Are you sure? You should assess whether your company has a critical mass of immigrant workers in particular jobs and, if so, determine why. Has there been any effort to “steer” such applicants or employees into specific jobs, even if it is not an official policy or practice? Likewise, complaints of harassment coming from members of these groups deserve heightened review and handling, ensuring that any such complaints are responded to in an appropriate manner. Employers should consider having the company's response to complaints regarding harassment generally subject to a “second-tier” review, and this is particularly so when the underlying complaint is one that is a priority in the SEP.

Emerging Issues

Three areas in particular warrant some review here:

1) Disability. Have you assessed whether your company is using the appropriate definitions under the ADAAA and evaluating requests for accommodation appropriately? Are you still using a set period of time (such as 26 weeks) for an employee to return to work or be terminated? Is your company requiring a full release from the doctor prior to any return to work being permitted? Are you evaluating leave requests on an individual basis?

2) Pregnancy. While pregnancy is not itself a disability, the EEOC is likely to have its antennae up, particularly when these situations involve pregnancy complications. Take care to make sure that these situations are addressed properly under the ADAAA. Employees taking leave all should be treated the same, regardless of whether the reason arises from a pregnancy complication or some other reason, including disabilities unrelated to pregnancy. This will keep your company safe under both the ADAAA and Title VII (as amended by the Pregnancy Discrimination Act).

3) Sexual Orientation. Finally, in regard to lesbian, gay, bisexual and transgender applicants or employees, remember that “stereotyping” (reacting to those who don't meet the stereotype associated with his or her sex) may be evidence of discrimination due to gender under Title VII. We know that the EEOC is looking for cases that raise this issue, so keep an open eye for
such matters.

Equal Pay

The EEOC has started to look at data that it collects in the course of its Charge investigations, and is seeking instances to proceed with so-called “directed investigations” or with Commissioner Charges, both of which are initiated by the EEOC rather than a Charging Party. A thorough review of compensation systems is likely to be time and money well spent. This applies both to the compensation process in hiring (think, for example, of disparities in compensation based on “market rates” and the effect due to gender) and the processes for assessing wage increases for existing employees. This subject is too complicated for detailed discussion in this article, but it warrants considerable thought and evaluation by general counsel as this almost certainly is an area in which the EEOC is looking to make waves and an area in which many companies may be vulnerable.

Access to Legal System

This is a pretty simple review that in-house counsel can conduct that may avert serious consequences. A prompt review of severance and settlement agreements to make sure that provisions containing waivers and other restrictions on “cooperation” with the EEOC do not run afoul of existing law. Likewise, retaliation claims that relate to pursuit of previous complaints or charges seriously raise the risk profile for EEOC enforcement activities. Putting a process in place that specifically reviews actions taken against those who make internal complaints or who have filed charges may well prevent more serious problems, ranging from intense investigatory activities to litigation seeking injunctive and other relief.

Harassment

As noted above, the EEOC truly wants to make an example out of employers that permit harassment to continue or that do not respond in a timely and appropriate manner when complaints of harassment are made. The agency considers this to be a good use of its resources, and it clearly intends to pursue such matters on a company-wide basis, seeking as much publicity as it can muster. A prompt review of your practices now will avert problems later.

Conclusion

Take to heart the fact that the EEOC has told employers exactly what it intends to focus its efforts on. Take a look at those areas in your company. Spend time now and avoid the headache and cost associated with running afoul of one of these areas that EEOC has explicitly stated it will pursue with vigor. The roadmap is there. Use it.

J. Randall Coffey is an attorney with Fisher & Phillips LLP, a national labor and employment law firm that represents management. He can be reached at [email protected].

'

On Dec. 17, 2012, the Equal Employment Opportunity Commission (EEOC) approved its Strategic Enforcement Plan (SEP). The purpose of the SEP, according to the Commission, is “to focus and coordinate the EEOC's programs” by adopting “national priorities”; the EEOC believes identifying these priorities is essential in making the best use of its limited resources, and has indicated that it will apply the full range of “integrated enforcement” strategies in addressing these areas. In its SEP, the EEOC identified six “national priority” areas. Through what it calls a “targeted approach,” the EEOC has indicated that charges of discrimination involving one or more of these priority areas will receive “first and highest priority” and “a greater share of agency time and resources.” For General Counsel looking for a cost-effective way to reduce risk and to stay off the EEOC's radar, knowing what the EEOC's national priorities are and conducting a self-audit in these six areas is a good start.

Strategic Enforcement Plan Priorities

So, what are the areas that the EEOC has identified as the most likely areas for its investigation and enforcement efforts? The following list contains the six areas the EEOC lists as its priorities:

1. Eliminating Barriers in Recruitment and Hiring

This priority is focused on class-based recruiting and hiring practices, particularly those that the Commission considers “systemic barriers,” which have a disparate impact on protected groups. In particular, the EEOC will look very closely at exclusionary policies or practices (such as inquiring about applicants' dates of birth or placing their pictures on applications), the “channeling” of individuals into specific jobs (for example, female applicants being steered to house-keeping jobs), and the use of “screening tools” such as criminal background checks, credit checks, or other pre-employment tests. Somewhat ominously, the EEOC notes in the SEP that it is “better situated” to pursue these subjects than are individuals or the private bar due to its greater access “to data, documents and potential evidence.”

2. Protecting Immigrant, Migrant and Other Vulnerable Workers

The EEOC's focus here relates to workers who may not be fully aware of the rights and protections afforded to employees under federal employment laws, or who may be reluctant or “unable” to exercise them. The EEOC intends to “target” instances of job segregation, harassment, human trafficking, and other discriminatory practices and policies, particularly including disparate pay, affecting immigrant, migrant and “other vulnerable workers,” although the SEP does not specifically identify who the “other vulnerable workers” might be.'

3. Addressing Emerging and Developing Issues

The third priority identified in the SEP is what the EEOC terms “emerging and developing issues.” The Commission cited the following as examples of issues in this category: 1) certain issues under the Americans with Disabilities Act Amendments Act (ADAAA), most notably issues relating to “coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat”; 2) accommodating pregnancy-related limitations under the ADAAA and the Pregnancy Discrimination Act (PDA); and 3) Title VII's sex-discrimination provisions applicable to lesbian, gay, bisexual and transgender individuals. In addition, the EEOC has observed that it may focus on other issues under this heading based on “significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations.” It appears that the EEOC intends here to leave itself sufficient latitude to address unforeseen events or other changes, such as the issue of religious discrimination following 9/11.

4. Enforcing Equal Pay Laws

This EEOC priority relates to compensation systems and practices that discriminate based on gender. Of particular significance, the EEOC specifically states that it intends to utilize directed investigations under the Equal Pay Act and Commissioner Charges under Title VII to “facilitate” enforcement of the equal pay laws. Particularly in light of the White House Equal Pay Task Force involving the Department of Justice (DOJ) and Department of Labor (DOL), as well as the EEOC, this is an area to which in-house counsel should pay a great deal of attention as it appears to be one that will generate intense scrutiny over the course of the next four to five years.

5. Preserving Access to the Legal System

The EEOC's interest in regard to this priority is “policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC's investigative or enforcement efforts.” Retaliation has become the largest category of charges filed with the EEOC, and the Commission has announced its intent vigorously to pursue apparent retaliation. Further, the EEOC includes in this category what it considers to be “overly broad waivers,” and settlement provisions that preclude an individual from filing a Charge of Discrimination or from assisting in the investigation or prosecution of other claims of discrimination.'

6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach

The final SEP priority relates to alleged harassment. The SEP notes that harassment is among the most frequent complaints raised in the workplace, particularly since, when combined, harassment claims based on race, ethnicity, religion, age and disability significantly outnumber even sexual harassment complaints. Over the last four years, over one-third of the Commission's systemic discrimination litigation has addressed alleged harassment. This national priority places an increased emphasis on how employers deal with harassment complaints, and the EEOC specifically now has stated that it will vigorously pursue systemic investigations and litigation of harassment allegations, as well as an outreach campaign to educate both employers and employees, to deter future violations. The Commission will be looking for cases of allegedly egregious harassment or inappropriate responses to internal complaints to determine which employers it will target for systemic enforcement.

How Can Employers Protect Themselves?

The EEOC's national priorities provide employers a tremendous opportunity. In the SEP, the Commission has outlined for every employer the areas on which the EEOC will target its enforcement efforts, highlighting the specific priorities upon which it will expend its time, money, and resources so as to have the broadest and most significant impact. If a Charge falls within one of the six priority areas, it will “receive increased investigatory attention and resources to ensure timely and quality enforcement action.”

For general counsel, the SEP in essence is a roadmap that allows employers to identify areas for review; it tells employers how to reduce the risk that they will become likely candidates for EEOC scrutiny and enforcement efforts. Particularly for large employers, since the EEOC now is intent on pursuing systemic, company-wide litigation related to issues that arise in these areas, a review and correction or modification of present practices or policies may result in multi-million dollar savings down the road. For smaller employers, avoidance of expensive investigations and enforcement actions likewise may have a similar impact. In-house counsel for companies of any size should promptly audit their practices and policies in the “national priority” areas identified by the SEP for the following (corresponding to the priority areas listed above).

Hiring

Have you reviewed your employment application and hiring process recently? The EEOC asks for the current employment application used by an employer in every investigation. Check your form to make sure you are not asking questions that would reveal age, ethnicity, or disability information. In addition, consideration of the following will reduce your risk of EEOC scrutiny on the hiring front: 1) Regularize your hiring process across locations; 2) Ensure that screening measures are being conducted by persons other than the decision-makers for the jobs at issue; and 3) If your company relies on conviction checks,review the recent EEOC Enforcement Guidance on use of criminal background checks (see http://tinyurl.com/75tb3vg) to compare your company's practices with those suggested in the “guidance.”

Evaluate whether there appears to be a disproportionate representation of one group or another in particular jobs, and determine whether this is a function of self-selection or if there perhaps is either intentional or unintentional steering of candidates to apply for certain positions.

If your company uses screening mechanisms of some sort or another, you may also want to evaluate (in as privileged a manner as possible) whether there appears to be any disparate impact related to the use of those mechanisms.'

Immigrant or Vulnerable Workers

Does your company have workers in these categories? Are you sure? You should assess whether your company has a critical mass of immigrant workers in particular jobs and, if so, determine why. Has there been any effort to “steer” such applicants or employees into specific jobs, even if it is not an official policy or practice? Likewise, complaints of harassment coming from members of these groups deserve heightened review and handling, ensuring that any such complaints are responded to in an appropriate manner. Employers should consider having the company's response to complaints regarding harassment generally subject to a “second-tier” review, and this is particularly so when the underlying complaint is one that is a priority in the SEP.

Emerging Issues

Three areas in particular warrant some review here:

1) Disability. Have you assessed whether your company is using the appropriate definitions under the ADAAA and evaluating requests for accommodation appropriately? Are you still using a set period of time (such as 26 weeks) for an employee to return to work or be terminated? Is your company requiring a full release from the doctor prior to any return to work being permitted? Are you evaluating leave requests on an individual basis?

2) Pregnancy. While pregnancy is not itself a disability, the EEOC is likely to have its antennae up, particularly when these situations involve pregnancy complications. Take care to make sure that these situations are addressed properly under the ADAAA. Employees taking leave all should be treated the same, regardless of whether the reason arises from a pregnancy complication or some other reason, including disabilities unrelated to pregnancy. This will keep your company safe under both the ADAAA and Title VII (as amended by the Pregnancy Discrimination Act).

3) Sexual Orientation. Finally, in regard to lesbian, gay, bisexual and transgender applicants or employees, remember that “stereotyping” (reacting to those who don't meet the stereotype associated with his or her sex) may be evidence of discrimination due to gender under Title VII. We know that the EEOC is looking for cases that raise this issue, so keep an open eye for
such matters.

Equal Pay

The EEOC has started to look at data that it collects in the course of its Charge investigations, and is seeking instances to proceed with so-called “directed investigations” or with Commissioner Charges, both of which are initiated by the EEOC rather than a Charging Party. A thorough review of compensation systems is likely to be time and money well spent. This applies both to the compensation process in hiring (think, for example, of disparities in compensation based on “market rates” and the effect due to gender) and the processes for assessing wage increases for existing employees. This subject is too complicated for detailed discussion in this article, but it warrants considerable thought and evaluation by general counsel as this almost certainly is an area in which the EEOC is looking to make waves and an area in which many companies may be vulnerable.

Access to Legal System

This is a pretty simple review that in-house counsel can conduct that may avert serious consequences. A prompt review of severance and settlement agreements to make sure that provisions containing waivers and other restrictions on “cooperation” with the EEOC do not run afoul of existing law. Likewise, retaliation claims that relate to pursuit of previous complaints or charges seriously raise the risk profile for EEOC enforcement activities. Putting a process in place that specifically reviews actions taken against those who make internal complaints or who have filed charges may well prevent more serious problems, ranging from intense investigatory activities to litigation seeking injunctive and other relief.

Harassment

As noted above, the EEOC truly wants to make an example out of employers that permit harassment to continue or that do not respond in a timely and appropriate manner when complaints of harassment are made. The agency considers this to be a good use of its resources, and it clearly intends to pursue such matters on a company-wide basis, seeking as much publicity as it can muster. A prompt review of your practices now will avert problems later.

Conclusion

Take to heart the fact that the EEOC has told employers exactly what it intends to focus its efforts on. Take a look at those areas in your company. Spend time now and avoid the headache and cost associated with running afoul of one of these areas that EEOC has explicitly stated it will pursue with vigor. The roadmap is there. Use it.

J. Randall Coffey is an attorney with Fisher & Phillips LLP, a national labor and employment law firm that represents management. He can be reached at [email protected].

'