EEOC Unveils 2013-2016 Enforcement Priorities

January 2, 2013

On December 18, 2012, the Equal Employment Opportunity Commission ("EEOC") announced the approval of its 2013-2016 Strategic Enforcement Plan.  The Plan’s purpose is to “focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace.”  The Plan sets forth six agency priorities:

• Eliminating Barriers in Recruiting and Hiring.  The EEOC will target discriminatory policies and practices that still exist at the hiring stage, such as exclusionary policies and procedures, the practice of steering individuals into certain jobs based on their status in a particular group, and the use of certain screening tools (pre-employment tests, background checks, and date-of-birth inquiries).
• Protecting Immigrant, Migrant, and Other Vulnerable Workers.  This priority will focus on practices that affect groups of vulnerable workers who are often unaware of their rights, or reluctant to exercise them.  The Plan specifically identifies disparate pay, job segregation, harassment, and trafficking practices as issues faced by this population of workers.
• Addressing Emerging and Developing Issues.  The Plan identifies several priority issues under this heading, including coverage and reasonable accommodation under the Americans with Disabilities Act ("ADA"), accommodating pregnancy-related limitations under the ADA, and coverage of lesbian, gay, bisexual, and transgender individuals under Title VII.
• Enforcing Equal Pay Laws.  The EEOC will focus on compensation systems that discriminate based on gender.
• Preserving Access to the Legal System.  This priority includes policies and practices that discourage or prohibit individuals from exercising their rights under the law, or impede the EEOC’s enforcement efforts, such as retaliatory actions, overly broad waivers, settlement provisions that prohibit filing charges or providing information to the EEOC, and failure to retain records required by EEOC regulations.
• Preventing Harassment Through Systemic Enforcement and Targeted Outreach.  The EEOC identifies harassment as one of the most common workplace complaints, and will continue to focus its efforts in this area.

The Plan reflects a targeted approach that will place a greater share of the EEOC’s resources on these six priority areas.  Charges that fall within these six areas will be given priority attention.

One key theme that can be discerned from this Plan is the EEOC’s strong interest in cases that could potentially affect more than just the charging party.  The EEOC intends to take the greatest investigative interest in charges that reference or otherwise involve employment policies or practices with potential class-wide impact -- even if the charging party does not specifically allege that more than one employee has been affected.  In assessing the risk or exposure associated with any given EEOC charge, employers must consider the possibility that the EEOC will broaden its investigation beyond the particular employee who filed the charge.  The EEOC's Plan serves as another reminder that employers should periodically evaluate whether their standard employment policies and practices might unintentionally have a discriminatory impact on any protected group, or might otherwise need to be improved or amended.