This post was contributed by Kelley E. Kaufman, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Law Group. A version of this post appeared in an Employer Alert published by McNees Wallace & Nurick LLC's Labor and Employment Group in October 2012. The Employer Alert can be accessed here.
The Equal Employment Opportunity Commission ("EEOC" or the "Agency") recently released a draft of its Strategic Enforcement Plan for Fiscal Years 2012 through 2016. The Agency has requested public comment on the Plan, which describes its strategy for targeted enforcement and the integration of administrative and legal enforcement activities. These efforts that are meant to help the Agency meet its responsibilities in the face of increasing demand and limited resources.
Most notably for employers, the EEOC's Plan outlines the nationwide priorities for its enforcement efforts in private, state and local government, and federal sectors. These priorities include:
- Eliminating systemic barriers in recruitment and hiring, which includes targeting not only class-based intentional hiring discrimination, but also facially-neutral hiring practices that have an adverse impact on certain protected groups (e.g., race, age, gender). Those topics of particular interest to the EEOC under this initiative will include pre-employment testing, background screening, date of birth screenings in Internet applications.
- Protecting immigrant, migrant and other vulnerable workers by targeting practices such as disparate pay, job segregation, harassment and trafficking, as well as policies that may include discriminatory language.
- Targeting retaliation, as well as policies and practices that are designed to discourage or prohibit the exercise of rights under the anti-discrimination laws. Retaliation claims represent the largest category of EEOC charges filed. The Plan indicates that this initiative will, in part, also target over-broad waivers, settlement provisions that prohibit filing charges with the EEOC or providing information in EEOC and other legal proceedings, and the failure to retain records as required under the EEOC regulations.
- Addressing "emerging employment issues" including a variety of issues under the Americans with Disabilities Act, as amended, and those involving pregnancy leave. Another emerging issue in the EEOC's crosshairs include coverage for lesbian, gay, bisexual and transgender individuals under the anti-discrimination laws. Most recently, the Agency has taken the position that discrimination based upon an individual because he or she is transgender is discrimination because of sex. Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).
- Continued targeting of harassment, including a renewed focus on national education and outreach for both employees and employers.
As the EEOC notes in its Plan, this targeted approach on clearly-identified issues and strategies "shifts the enforcement paradigm from complaint-driven to priority-driven."
Employers should take note of the target areas, which highlight the areas on which the Agency will be focusing in the coming years – and areas on which employers should be focusing now. Taking time to review company policies, procedures and training in these target areas now may help avoid costly and time-consuming claims in the future.