By Christopher DeGroff and Annette Tyman
The U.S. Equal Employment Opportunity Commission recently published its Draft Strategic Plan For Fiscal Years 2012 – 2016. In it, the EEOC outlines its four-year strategy for accomplishing its mission “to stop and remedy unlawful employment discrimination” and for achieving its vision of “justice and equality in the workplace.” The Plan focuses on three Strategic Objectives accompanied by targeted Outcome Goals and Performance Measures. The Plan is a must-read for employers and practitioners alike, as it provides a forecast of where the EEOC intends to focus its efforts over the next four years.
The EEOC’s first Strategic Objective is to combat employment discrimination through strategic law enforcement. Most of the agency’s financial and human resources will be focused on this Objective. The key strategies include:
- “Use administrative and litigation mechanisms to identify and attack discriminatory policies and other instances of systemic discrimination.” To this end, the EEOC’s Systemic Initiative remains a “top priority” for the EEOC. As we have reported in the past, the Initiative is focused on identifying, investigating, and litigating pattern or practice, policy, and/or class cases. The EEOC’s strategy around this initiative includes a more rigorous and strategic pursuit of systemic discrimination case. Employers should take note – the EEOC intends to establish target percentages that will increase year over year to ensure that a “TBD% of the agency’s litigation docket are systemic cases” by the end of FY 2016. We expect to see those preliminary target percentages by the end of FY 2012 (on September 30, 2012).
- Developing and implementing a Strategic Enforcement Plan. By September 2012, the EEOC intends to develop a Strategic Enforcement Plan that will replace the current National Enforcement Program prepared in 2006. In addition to articulating the EEOC’s high priority cases, the Enforcement Plan will outline the Commission’s plan to “integrate” the EEOC’s investigation, conciliation, and litigation responsibilities for private employers and state and local government sectors. Although the EEOC’s stated position as a “neutral” at the investigation stage has long been questioned, the EEOC’s new Draft Plan makes it official – the EEOC is, in essence, entitled to free discovery though its investigative powers to support its long-term litigation strategy. The lines that purportedly once existed between the EEOC’s investigative arm on the one hand and its litigation arm on the other will now be erased for all practical purposes.
- Ensure that remedies end discriminatory practices and deter future discrimination. The EEOC promises to seek “targeted equitable relief” for alleged victims of discrimination. Exactly what “targeted equitable relief” will mean for employers will be defined in the Strategic Enforcement Plan. It seems clear that such relief will go well beyond standard requests for compensatory damages or punitive damages that are common in current cases. The equitable relief sought will target all employees and job seekers as opposed to just the original charging parties and will be used by the EEOC to deter employers other than the Respondent from engaging in alleged unlawful discriminatory practices. Employers should expect to receive increased demands for ongoing management training and external monitoring, for example, among other “creative” remedies.
The EEOC’s second Strategic Objective is to prevent employment discrimination through education and outreach. The EEOC’s two outcome goals are:
- Ensure that members of the public understand and know how to exercise their right to employment free discrimination; and
- Encourage employers, unions, and employment agencies to prevent discrimination and better resolve equal employment opportunity issues, thereby creating more inclusive workplaces.
Traditionally, the EEOC’s outreach programs were implemented through free education activities and training and, to a lesser extent, fee-based training through the EEOC’s Training Institute. The EEOC now intends to focus its outreach efforts on particular target groups that the EEOC believes have not been “equitably served by the Commission.” While the target groups are not yet defined, the EEOC suggests that “persons of color under 30, low-skilled workers, and new immigrants who may be unfamiliar with the nation’s employment laws” as well as small and new businesses will be part of the EEOC’s target audience. Not surprisingly, the protected-category workers at issues are the very groups on whose behalf the EEOC filed several large-scale actions in 2011.
To reach these groups, the EEOC indicates that it plans to shore up its internet and social media presence to conduct education and outreach activities. The EEOC will implement a “social media plan” by the end of FY 2014 and promises to make its website more “accessible and user-friendly.” In addition, the EEOC states that it will review and update “all current sub-regulatory guidance” with plain language materials. Such guidance includes an update to the EEOC Compliance Manual.
The EEOC’s third Strategic Objective is to deliver excellent service through effective systems, updated technology, and a skilled and diverse workforce. This objective is largely operational in nature and will be further detailed in other publications. Nonetheless, at least one key initiative will be directed toward reducing the time it takes for the EEOC to investigate charges before issuing a determination. The EEOC anticipates that this strategy will result in the ability to focus the majority of its attention on meritorious discrimination charges.
Implications For Employers
The EEOC’s Strategic Plan continues to evidence the Commission is an agency with a laser-focus on pursuing systemic discrimination claims with more robust tools and strategies. In the face of Congressional action that reduced the Commission’s annual budget by $6.6 million in late 2011, the EEOC’s four-year plan makes clear that it will focus on getting the word out to currently underserved populations while at the same time harnessing its collective resources and investigative powers to identify, investigate, and litigate large discrimination claims to deliver the most “bang for its buck.”