The EEOC Provides Important Guidance to Employers Through Its Strategic Enforcement Plan
In September, the Equal Employment Opportunity Commission ("EEOC") released its draft Strategic Enforcement Plan ("SEP") for Fiscal Years 2012 through 2016. The EEOC expects the SEP to establish a framework for achieving its mission to "stop and remedy unlawful employment discrimination." The SEP provides helpful and important guidance for employers regarding the EEOC’s five priorities over the next four years.
1. Eliminating Systemic Barriers in Recruiting and HiringThe first of the EEOC’s priorities is to eliminate systemic barriers in recruiting and hiring. The EEOC will target facially neutral hiring practices, which, in practice, adversely impact protected groups such as racial and ethnic minorities, older workers, women and applicants with disabilities. For example, the EEOC plans to take a closer look at:
- hiring or recruiting practices that have the effect of channeling or steering individuals into specific jobs due to their status in a particular group;
- restrictive application processes; and
- the use of pre-employment screening tools such as date of birth screens in online applications.
The EEOC plans to use its investigative powers (including subpoenas and requests for information from employers) to discover and resolve such systemic barriers in the workplace.
2. Protecting immigrant, migrant and other vulnerable workersThe EEOC’s second priority is to protect immigrant, migrant and other vulnerable workers who may be unaware of their rights under equal employment laws or who are reluctant or unable to exercise them. Specifically, it plans to target disparate pay, job segregation, harassment, trafficking, and discriminatory language policies.
3. Addressing Emerging IssuesFor its third priority, the EEOC plans to target the following emerging issues:
- The Americans with Disabilities Act ("ADA") and revisions under the ADA Amendments Act ("ADAAA"). In particular, the EEOC plans to enforce the ADAAA’s increased protections for those who had not previously been considered disabled. In addition, the agency plans on carefully examining employer defenses to requests for accommodation, including whether the requested accommodations would cause undue hardship to an employer, present a direct threat to the employee or co-workers, or conflict with a business necessity of the employer.
- Lesbian, gay, bisexual, and transgender ("LGBT") discrimination and coverage for these individuals under Title VII sex discrimination provisions. While this area of the law is still developing, such coverage may include instances where a man suffers discrimination or harassment for acting in a feminine manner.
- Pregnancy discrimination as it relates to pregnant women who have been forced to take unpaid leave after being denied accommodations routinely provided to similarly situated employees. There have already been several new EEOC lawsuits involving pregnancy discrimination over the last two months. One lawsuit was settled in November 2012 against a Michigan employer that required its pregnant employees to take immediate pregnancy leave unless they obtained a doctor’s certification indicating they could safely continue to work while pregnant. As part of the settlement, the employer was required to rescind its pregnancy policy and conduct training on pregnancy discrimination for a period of ten years.
As its fourth priority, the EEOC will focus on retaliation. The SEP identifies retaliation as the largest category of charges the EEOC receives and the largest category of federal sector complaints. The EEOC believes that retaliatory actions impede the EEOC’s investigative and enforcement efforts and can discourage individuals from exercising their rights under federal anti-discrimination laws.
The EEOC will also target the failure to retain records required by EEOC regulations and settlement agreements that prohibit employees from filing charges with the EEOC.
5. HarassmentThe EEOC’s fifth and final priority is harassment. While harassment has always been a focus of the EEOC, the agency recognizes that harassment is still a serious problem in the workplace. Therefore, it plans to re-vamp its national education and outreach campaigns to educate employers and employees who may struggle with how to prevent and respond to harassment in the workplace.
The SEP’s Impact on EmployersThe EEOC has made clear that legitimate charges of discrimination relating to the aforementioned priorities will "receive increased investigatory attention and resources to ensure timely and quality enforcement action."
The EEOC also plans to be more proactive and less reactive when it comes to its investigative and enforcement authority. Thus, employers should use the SEP as a reminder to evaluate company policies, procedures, and practices to avoid potential liability. Additionally, employers should be extremely cautious when responding to the EEOC because of the likelihood that they may say or produce information that would lead the EEOC to broaden its investigation in an effort to ferret out evidence of violations relating to one of its SEP priorities. To help you decide whether your employment policies, procedures, and practices are at risk, you can access the SEP here, or contact a member of the Troutman Sanders LLP Labor and Employment Group.
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