Seyfarth Synopsis: On February 4, 2020, EEOC Chair Janet Dhillon’s released a list of priorities for the Commission in 2020. While the priorities primarily focus on continuing to seek justice for workers raising claims of discrimination, Chair Dhillon’s announcement also provides a welcome glimmer of hope for employers, particularly in its acknowledgment that litigation against employers should be “truly a last resort.” The list of priorities is a must read for all employers.
On February 4, 2020, EEOC Chair Janet Dhillon issued a media statement announcing the Commission’s priorities for 2020. Those priorities can be found here. They should be viewed and considered in conjunction with the EEOC’s 2017-2021 Strategic Enforcement Plan, which was promulgated by the EEOC in October 2016 and can be found here. However, the February 4 announcement appears to signal something of a shift for the agency.
In a short and concise statement, Chair Dhillon outlined five priority categories for the EEOC in 2020. These categories include: (1) continuing to provide excellent customer service to those who access the Commission’s processes; (2) continuing to provide robust compliance assistance; (3) enhancing efforts to reach vulnerable workers; (4) strategically allocating the Commission’s resources; and (5) continuing the Commission’s efforts to be a model workplace.
A Continued Focus On Reaching And Protecting Vulnerable Workers
In line with the EEOC’s 2017-2021 Strategic Enforcement Plan, Chair Dhillon’s 2020 priority list continues to focus on ensuring that vulnerable workers are protected from civil rights violations and discrimination. The 2020 priorities emphasize providing outreach to and enforcing the rights of vulnerable populations in the workplace. The EEOC has typically taken a fairly expansive definition of vulnerable populations, but in recent years (as reported by in our previous posts here), this priority has tended to focus on migrant and immigrant workers and, possibly, a new and heightened awareness of national origin discrimination. In recent years, this vulnerable population also has included young women targeted by sexual harassment, particularly in the hospitality industry.
A Renewed Emphasis On Outreach, Conciliation, And Mediation Ahead Of Litigation
But in what will hopefully be a promising trend for employers, the 2020 priorities appear to signal a shift away from the Commission’s litigation efforts in favor of greater concentration on the EEOC’s goals to continue to build its mediation program in the private and federal sectors, to make a renewed commitment to “meaningful and effective” conciliation efforts in all private sector cases, and to build strong partnerships with employers to provide education and outreach in the private, public, and federal sectors.
Although the Chair’s priority list acknowledges that the Commission will continue to pursue its litigation agenda vigorously, it auspiciously opines that “litigation is truly a last resort and not an appropriate substitute for rule-making or legislation.” This statement could be a glimmer of hope for employers that the EEOC will take a step back from what some have called a “shoot first and aim later” litigation strategy.
Ongoing Efforts To Decrease The Charge Backlog
Over the past few years, the EEOC has made significant efforts to decrease its backlog of filed charges. Chair Dhillon’s priorities indicate that those efforts will continue into 2020, as the EEOC focuses on reducing inventory levels of private and public sector charges and federal sector hearings and appeals, embracing technology, and using data analytics to help data-driven decision–making to improve customer service (an accounting of the filed charge statistics for 2019 can be found here).
An Aim To Reduce Confusion Related To EEOC Guidance And Enforcement
In an effort to help employers comply with civil rights laws, Chair Dhillon’s priority list indicates that the Commission will work in 2020 to update its guidance and technical assistance documents so that they contain “a clear explanation of the law.” The Chair’s list acknowledges that unclear or out-of-date guidance from the Commission raises the potential for confusion among the EEOC’s stakeholders. The list also mentions that such guidance may “exceed the Commission’s statutory authority,” which could be a tacit acknowledgment of the EEOC’s recent troubles getting the federal courts to buy into the agency’s interpretation of the federal anti-discrimination laws. (For example, our discussion of the Fifth Circuit’s rejection of the EEOC’s criminal history guidance is here.)
Implications For Employers
While Chair Dhillon’s 2020 priorities clearly emphasize improving customer service for workers filing charges of discrimination and reaching vulnerable populations in the workplace, they also include a welcome and long-awaited signal that the EEOC finally may be starting to approach mediation and conciliation in a more meaningful way, rather than moving rapidly to enforcement in the federal courts. Only time will tell if that priority translates into less litigation.