EEOC’s Strategic Enforcement Plan for 2013 – 2016
On December 17, 2012 the U.S. Equal Employment Opportunities Commission (EEOC) approved a strategic enforcement plan, which will be effective from October 1, 2013 through September 30, 2016. The plan outlines six enforcement priorities that employers should keep in mind.
The EEOC is the federal agency that enforces laws prohibiting discrimination on the basis of characteristics such as age, race, sex, disability, religion, national origin, pay, and genetic information. The agency also protects workers from retaliation for opposing discriminatory practices, filing a charge of discrimination, or participating in an investigation or lawsuit related to discrimination protections.
The agency will focus its enforcement efforts in a way that has a broad impact, tackles developing areas of law, affects workers who may lack an awareness of their rights or be reluctant to complain, or advances full enforcement of anti-discrimination laws. The six priorities include:
1) Eliminating barriers in recruitment and hiring by targeting intentional acts of discrimination or practices that have a discriminatory effect against protected groups.
2) Protecting immigrant workers, migrant workers, or other vulnerable groups from discriminatory pay practices, job segregation, harassment, and trafficking.
3) Addressing emerging and developing issues caused by demographic changes such as the aging work force, significant events such as 9/11 (which still leads to complications for Sikhs, Muslims, and other South Asians), and changes in the law.
4) Enforcing Equal Pay laws by investigating compensation systems and practices that discriminate based on gender.
5) Preserving access to the legal system by curbing retaliation, invalidating settlement provisions that prohibit the filing of discrimination charges or participation in investigations, and cracking down on poor record-keeping.
6) Preventing harassment based on race, ethnicity, religion, age, disability, and sexual harassment.
The EEOC has requested a fiscal year 2013 budget of $373 million. To implement its plan the agency will rely on four approaches: 1) Strategic litigation, 2) Use of mediation or other alternate dispute resolution programs to reach administrative settlements, 3) Compliance assistance from partner agencies such as the Wisconsin Department of Workforce Development or Madison Equal Opportunities Commission, and 4) Educating claimants of their rights and referring them to pro bono clinics, state bar association information services, and private attorneys. The reliance on education programs and referrals to non-EEOC resources will be critical, as the agency cannot litigate every valid claim. For example in 2011, the agency only filed 261 lawsuits while individuals filed over 16,000.
Enforcement Concerns For Employers
Some workplace trends employers should be mindful of to avoid discrimination claims and enforcement actions include:
1) Improper use of pre-employment tests, background checks, or date of birth inquiries during the hiring process.
2) Demands for specific or extra documentation from immigrants or foreigners during the Form I-9 employment authorization verification process.
3) Protections for victims of trafficking or domestic violence; sexual stereotyping of lesbian, gay, bisexual, or transgender individuals; and employees facing workplace bullying to the point of harassment.
4) Reliance on neutral practices, such as performance reviews, whose outcomes are influenced by discriminatory comments or ratings.
5) Failure to shield an employee from unlawful workplace retaliation after the individual files a discrimination complaint, even if the complaint did not have any merit.
6) Successfully avoiding actual discrimination only to face liability for technical violations of record-keeping requirements.