EEOC seal.pngBy Christopher DeGroff and Gerald L. Maatman, Jr.

The EEOC just published an updated Draft Strategic Plan For Fiscal Years 2012-2016. It is required reading for all employers.

In the Draft Strategic Plan, the EEOC outlined its four-year strategy for accomplishing its mission to “combat employment discrimination through strategic law enforcement,” and for achieving its vision of “justice and equality in the workplace” by implementing a consistent investigation, conciliation, and litigation system. Throughout the EEOC’s drafting process, it has solicited public input on the Plan. In June 2012, Seyfarth Shaw submitted its recommendations to the Commission for ways in which it can better achieve the goal of discrimination-free workplaces – one of the few private organizations submitting a response to the EEOC’s request for public input (discussed here and here). Following up on the written submissions, the EEOC held a full-day public meeting seeking additional input on its Plan. We attended, and discussed the meeting in a posting that same day here

This summer’s activity left us wondering: “did the key decision-makers at the EEOC listen?” Today, we have some answers. 

The EEOC’s “Priority” Cases

At the EEOC’s public meeting, multiple panelists urged the EEOC to set as priorities certain types of discrimination that it feels are common and often unaddressed, such as pregnancy discrimination, national origin discrimination against immigrants, and religious discrimination. In this week’s draft Plan, the EEOC staked a claim and identified its top priorities for investigations and case selection. 

The key priorities include:

“Eliminating Systemic Barriers in Recruitment and Hiring.” To this end, the EEOC’s Systemic Initiative remains a “top priority” for the EEOC. With increasing frequency, the EEOC has focused its efforts to expand the scope and profile of large-scale systemic litigation. The draft Plan crystalized that the EEOC will continue to target class-based intentional hiring discrimination, with a focus on policies that channel individuals into jobs due to their status in a particular group, and discriminatory use of pre-employment tests, background screens, and date of birth screens.

 “Protecting immigrant, migrant and other vulnerable workers.” The EEOC’s draft Plan noted that it will target disparate pay, job segregation, harassment, trafficking, and discriminatory language policies affecting employees.

“Addressing Emerging Issues” including:

  • “ADA Amendments Act issues;”
  • “LGBT (lesbian, gay, bisexual and transgender individuals) coverage under Title VII sex discrimination provisions;”
  • “Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.”

“Preserving Access to the Legal System.” The EEOC’s draft Plan notes that it will continue to focus on retaliation against employees who exercise their rights under employment discrimination statutes.

“Combating Harassment.  Last, the EEOC acknowledged that it is “necessary to re-evaluate [its] strategies to be more effective[.]” Its plan is to refocus efforts on a national education outreach campaign that addresses how to prevent and, when necessary, respond to harassment in the workplace.

Work in Progress.jpgTo sum up the EEOC’s priorities: the draft Plan mixes the old with the new. Employers can expect that the Commission will continue to make good on its promise to litigate large-scale, high-impact and high-profile investigations and cases, and simultaneously focus on other types of individual discrimination.

However, in our view there is an under-current here. The EEOC clearly retreated from its “all in” systemic litigation focus to a more narrowly defined sub-set of systemic cases involving hiring practices. The unspoken aspect of the Strategic Enforcement Plan is that the EEOC may have concluded that its previous “all in” litigation mantra outstripped its manpower and budget, and that its litigation agenda was too ambitious.

Consistency In Enforcement And Litigation

A common theme among the panelists at the EEOC’s public meeting was the need for consistency in enforcement and litigation. In Seyfarth’s written submission to the EEOC, we discussed the fact that the EEOC’s district-centric structure makes dealing with the EEOC like working with dozens of different, highly idiosyncratic firms. It is no secret that one District office can work to resolve or litigate a case in one manner, while another District office works in an entirely different way. 

To that end, the EEOC’s draft Plan noted that the Commission does not expect every EEOC office to implement the Strategic Enforcement Plan identically. The EEOC’s draft Plan attempted to remedy this shortcoming by requiring that “each District Officer Director and Regional Attorney, in consultation with Field, Local, and Area Directors in their district, shall develop a District Complement Plan to the SEP by March 29, 2013” that will identify how the office will implement the SEP priorities and highlight local enforcement priorities and strategies for addressing them. 

Although the EEOC has stated time and time again that the agency operates its investigation and enforcement philosophies through a “national law firm model,” the draft Plan acknowledges that it is not always effective to issue national “directives” to districts or regions. In effect, the draft Plan will give some discretion to those with “boots on the ground” to pursue investigations and litigation. But at what cost? Permitting each district to streamline the Plan may highlight concerns of employers — constant inconsistency within the EEOC’s 15 district offices.  

So What Is Missing From The Strategic Enforcement Plan

Conspicuously absent from the Plan is any concrete response to the myriad of criticism of federal judges who have sanctioned the EEOC and dismissed its cases over the past 24 months over “shoot first, aim later” tactics. We have blogged on those cases and discussed their implications repeatedly (read more here and here).

Employers undoubtedly expected the EEOC to respond to those issues, but the Plan does not.

Under Construction.jpgImplications For Employers

Although the EEOC’s Strategic Plan is still “under construction,” the Commission solicited public comments on this week’s draft of its Strategic Enforcement Plan. Comments are due to by 5:00pm ET on September 18, 2012.  Stay tuned.

Readers can also find this post on our new EEOC Countdown blog here.