As we reported earlier this year in various blog posts, the EEOC has developed a 2012-2016 Strategic Plan designed to be the blueprint for all of its enforcement activity in upcoming years. The Plan focuses on Strategic Objectives accompanied by targeted Outcome Goals and Performance Measures.
The EEOC’s first Strategic Objective is to combat employment discrimination through strategic law enforcement. This “strategic law enforcement” includes a mandate to develop and implement a Strategic Enforcement Plan by September 2012. According to the EEOC, the Strategic Enforcement Plan 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.
On June 5, 2012, the EEOC asked the public for input on its new Strategic Enforcement Plan. The EEOC indicated that it was most interested in, among other things, recommendations for improving enforcement, outreach and prevention, and customer service.
Today Seyfarth Shaw submitted its recommendations to the Commission for ways in which the EEOC can better achieve the goal of discrimination-free workplaces. We based these recommendations on years of close interaction with the agency in some of its largest and most complex matters. Our relationship with the EEOC has sometimes been as partners in developing effective, state-of-the-art programs with our clients, and at other times as adversaries with the EEOC in intense and large-scale litigation. Through this near-constant interaction, Seyfarth Shaw has developed a unique perspective on the problems facing employers seeking to work with the EEOC. Seyfarth Shaw’s recommendations can be encapsulated as follows:
The EEOC should abandon “hide the ball” tactics: With the EEOC’s focus shifted to large-scale, high-profile litigation, we have seen an alarming trend to abandon its core tenant of seeking voluntary compliance with EEO laws through cooperating with employers to eliminate real and perceived problems. Seyfarth’s submission notes that, although there are large segments of the agency still committed to working with employers before initiating litigation, there is at least a perception that this contingent is shrinking. We note in our submission that a number of federal courts have taken a dim view of these tactics, which only erode the EEOC’s effectiveness and reputation. We provided a number of suggestions on how the Commission can reverse this trend.
The EEOC’s abuse of its subpoena power: The EEOC increasingly relies on aggressive subpoena enforcement to achieve not only its fact-finding goals, but also as a lever in conciliation negotiations. Some federal courts have supported the EEOC’s use of this tool, and others have not, but this is an instance where what the EEOC can do and what it ultimately should do may diverge. Our submission urged a more reasoned, incremental approach to agency information requests and subpoenas.
The perils of melding the EEOC’s investigative and legal elements: The EEOC’s Strategic Plan notes that it intends to integrate some of its investigative and legal functions. If pursued, this would be a chilling development. As we pointed out in our submission, the EEOC is first and foremost a neutral fact-finder at the investigative stage. Pairing investigators with agency lawyers who will ultimately litigate these matters corrodes any sense of impartiality. Seyfarth warned that the Enforcement Plan should not take the myopic approach of endorsing investigations that are intertwined with legal interests and involvement.
Addressing “consistent inconsistency:” The one common denominator of all of these problems is the EEOC’s often fractured organizational structure. The lack of procedural consistency between and among the various EEOC district offices is a constant source of frustration not only for employers, but also for the Commission itself. The concern that one hand not knowing what the other is doing leaves employers guessing as to how it should interact with the EEOC.
The EEOC’s goal of eliminating workplace discrimination is a laudable one, and one shared by employers from coast to coast. We hope that, armed with Seyfarth Shaw’s suggestions, as well as the many other submissions presented to the agency, the EEOC will be better able to accomplish this mutual goal.