Seyfarth Synopsis: On October 17, 2016, the EEOC unveiled its updated Strategic Enforcement Plan (“SEP”) for Fiscal Years 2017-2021. It ought to be required reading for every employer and their executive teams.
The New SEP
The 2017 SEP can be viewed here. This plan replaces the first SEP, issued in 2012, which provided strategic direction for the agency through 2016. (See our analysis of that plan here.) According to the EEOC, the new SEP “builds on the EEOC’s progress in addressing persistent and developing issues by sharpening the agency’s areas of focus and updating the plan to recognize additional areas of emerging concern.”
If some employers were hoping that the EEOC would rethink its enforcement priorities and craft a new strategic direction for the future, the updated SEP may be a bit of a disappointment. The new SEP reveals that the EEOC is not backing away from its focus on systemic, strategic litigation, nor has it significantly rethought the substance of its enforcement priorities.
The EEOC experienced harsh criticism on Capitol Hill (especially amongst some Republican legislators) for how it pursued its enforcement priorities under the 2012 SEP – particularly with respect to its pursuit of high profile systemic cases at the expense of what some might regard as smaller, but more “meritorious” individual cases. The new SEP shows no sign that the agency will back away from this approach.
Continued Focus On Achieving “Strategic Impact” Through Litigation
The hallmark of the first SEP was the EEOC’s focus on “systemic litigation.” The new SEP appears to double down on that approach, stating that “[t]he Commission reaffirms its commitment to a nationwide, strategic, and coordinated systemic program as one of EEOC’s top priorities.” The SEP emphasizes a continued pursuit of systemic litigation and other types of cases that will have a “strategic impact.” Those are cases or activities that have a significant effect on the development of the law or on promoting compliance across a large organization, community, or industry.
The new SEP does recognize that not all “strategic impact” cases must be systemic cases. An individual charge of discrimination can have a strategic impact as well. A lawsuit’s strategic impact is not necessarily determined by the number of affected individuals, but rather is identified by the significance of a particular issue and the potential outcome. The new SEP asserts that the EEOC’s goal will be to balance individual cases and systemic cases to best pursue the agency’s enforcement priorities. Meritorious cases that raise one or more of the substantive priorities will be given precedence in case selection, as will cases that fall outside of those substantive areas if they are likely to have a strategic impact.
Substantive Changes To The Enforcement Priorities
The EEOC’s first SEP set out six priorities that the Commission identified to define its enforcement mission for Fiscal Years 2013-2016. Those priorities were chosen to put the enforcement focus on issues that would affect a broad number of individuals, employers, or employment practices, with a special emphasis on issues affecting the most vulnerable workers, meaning those unaware, reluctant, or unable to exercise their rights. It also sought to impact developing areas of the law where the EEOC has particular expertise and issues where the government has access to information, data, and research that would render the Commission a particularly effective advocate. The updated SEP keeps the same six priorities as the first SEP, including:
- Eliminating barriers in recruitment and hiring;
- Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination;
- Addressing selected emerging and developing issues;
- Ensuring equal pay protections for all workers;
- Preserving access to the legal system; and
- Preventing systemic harassment. (We blogged about the EEOC’s recent anti-harassment efforts here.)
The biggest substantive changes are described by the EEOC as additional “areas of focus” within those same six enforcement priorities.
Within the “developing and emerging issues” priority, the EEOC identified several areas of focus, many of which have already been the subject of extensive EEOC litigation under the 2012 SEP. For example, the new SEP identifies pregnancy-related limitations under the ADA and LGBT protections as substantive areas of focus under this topic, both of which have been litigated over the past few years. However, employers should note the two new emerging and developing issues that were identified in the 2017 SEP also cover:
Complex Employment Relationships: The EEOC identified issues related to “complex” employment relationships as a new area of focus. In particular, the agency is interested in “[c]larifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.” Hence, new gig economy companies and those prone of joint employer relationships are new targets.
Backlash Discrimination: The EEOC also has made it a priority to address “backlash discrimination” against those who are Muslim or Sikh, or persons of Arab, Middle Eastern, or South Asian descent, as well as persons perceived to be members of these groups, that might arise against them as a result of current events affecting the Muslim world.
The EEOC also identified two new areas of focus within the “barriers in recruitment and hiring” priority: (1) the lack of diversity in certain industries (technology and policing were singled out in the 2017 SEP); and (2) the increasing use of data driven screening tools.
Implications For Employers
The new SEP shows that the EEOC is not contemplating any wholesale changes to its strategic direction. Rather, it shows an agency refocused on the enforcement priorities and successes that were set forth in the 2012 SEP, including its devotion to systemic litigation and other cases that may have a “strategic impact.”
The EEOC has proved itself to be an agency that makes good on its word. The 2012 SEP had a noticeably significant impact on the EEOC’s litigation focus over the past four years. Employers should expect that the Commission will continue to make good on its promise to litigate large-scale, high-impact, and high-profile investigations and cases that address the issues identified as its enforcement priorities and areas of focus.
Companies in the staffing industry and the on-demand economy should be particularly concerned, as well as those companies that make heavy use of temporary workers or independent contractors.
We will continue to track and report back on litigation trends and developments affecting those industries, as well as the other industries and issues identified in the 2017 SEP.