Contributed by Jill Cheskes
As has been discussed previously on this blog, the EEOC has shifted its investigatory and litigation tactics over the last few years in a tangible way that could affect any employer at any time before the agency. Since 2006, the EEOC has focused extensive resources on ferreting out “systemic discrimination.” This continues to be a prime focus of the EEOC. The agency published their Strategic Enforcement Plan (SEP) on September 4, 2012 and is seeking public input prior to voting on it on September 30, 2012.
The SEP indicates that the EEOC’s guiding principles are based on the belief that “targeted enforcement efforts will have the broadest impact to prevent and remedy discriminatory practices in the workplace.” To that end, the EEOC has identified is nationwide priorities as:
- Eliminating Systemic Barriers in Recruiting and Hiring – the EEOC will be looking at both intentionally discriminatory hiring and recruiting practices as well as facially-neutral policies that have a disparate impact;
- Protecting Immigrant, Migrant and Other Vulnerable Workers – the EEOC will be targeting disparate pay, job segregation, harassment, trafficking and discriminatory policies that may be affecting these workers who are unaware of their rights;
- Addressing Emerging Issues – Identified as ADAAA issues, LGBT coverage under Title VII sex discrimination provisions, and accommodating pregnancy;
- Preserving Access to the Legal System – the EEOC will target policies intended to discourage access such as retaliation, overly broad waivers, settlement agreements that prohibit filing a charge or providing information to the EEOC and failure to retain records;
- Combating Harassment – the EEOC wants to re-evaluate its strategies in this regard including refocusing efforts on a national education and outreach campaign for both employers and employees.
As can be seen by these initiatives, the EEOC’s number one priority remains to root out systemic discrimination by companies and is now focusing on hiring practices, which is likely something that most employers don’t address nearly as much as discrimination or harassment of existing employees.
Additionally, the EEOC’s focus on vulnerable workers and emerging issues shows a true determination to address issues that are probably not fully on employers’ radar screens. The EEOC’s SEP makes it clear that employers will continue to face many challenges when responding to charges of discrimination and will continue to have an aggressive approach by the EEOC.