HR News & Trends, Legal Issues

EEOC Wants Comments on Its Proposed Strategic Enforcement Plan

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Now’s your chance: The Equal Employment Opportunity Commission (EEOC)  has released for public comment a draft of its Strategic Enforcement Plan (SEP). Details on how to comment are below.

What does the Strategic Enforcement Plan propose? Calling this “an opportune moment to aim for bold and transformative change,” the EEOC identifies the following key priorities:

Eliminating systemic barriers in recruiting & hiring

The EEOC will “target class-based intentional hiring discrimination and facially neutral hiring practices that adversely impact particular groups.” More specifically, the EEOC plans to target:

  • Exclusionary policies and practices;
  • Channeling/steering of individuals with specific jobs due to their status in a particular group;
  • Restrictive application processes;
  • The use of screening tools (e.g., pre-employment tests, background screens and date-of-birth screens in online applications).

Protecting immigrant, migrant, other vulnerable workers

The EEOC will “target disparate pay, job segregation, harassment, trafficking and discriminatory language policies affecting these vulnerable workers who may be unaware of their rights.”

Addressing emerging issues

Here’s where things get a little interesting. The EEOC identifies the following “current emerging issues” that it will target:

A few comments

ADA litigation is ripe to explode, given the expansiveness of the definition of “disability” and the narrowness of employer defenses.

As for LGBT, the EEOC is a bit limited because at the moment there is no federal law that expressly protects those characteristics. Some federal courts have expanded Title VII protections to sex stereotyping, which could include transgender issues. Of course, that could all change if the Employment Non-discrimination Act (ENDA) – which would protect LGBT status — ever passes.

Access to the legal system

The EEOC will also “target policies and practices intended to discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC’s investigative or enforcement efforts.” Specific targets include:

  • Retaliatory actions;
  • Overly broad waivers;
  • Settlement provisions that prohibit filing EEOC charges or providing information in EEOC or other legal proceedings;
  • Failure to retain records required by EEOC regulations.

Combating harassment

Harassment of all types shows no signs of abating. The EEOC plans on refocusing its “efforts on a national education and outreach campaign aimed at both employees and employers, many of whom struggle with how to prevent and appropriately respond to harassment in the workplace.”

“Systemic” litigation

The Strategic Enforcement Plan makes it clear that the EEOC will continue its emphasis on “systemic” cases — class action-type cases with a potentially broad impact on an industry or geography. As for individual charges, the EEOC will categorize as “Category A Charges” those that involve the priorities noted above. Those will get the highest priority, in addition to individual disability, harassment and retaliation cases.

Comment now

Comments about the Strategic Enforcement Plan (SEP) and the EEOC’s strategic direction may be emailed to strategic.plan@eeoc.gov or mailed to: Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507. Comments must be received by 5:00 pm Eastern Sept. 18, 2012. For general questions about the SEP, call (202) 663-4070 (TTY: (202) 663-4494).

According to the EEOC, “Your input is vital to [the EEOC's] efforts to ensure accountability to our nation’s workers, employers, and taxpayers in general. All comments will be reviewed and considered as the Commission continues to edit the plan.”

The Strategic Enforcement Plan will officially go into effect Oct. 1, 2012. It will stay in effect until Sept. 30, 2016 unless another SEP is approved.

This was originally published on Manpower Group’s Employment Blawg.

Mark Toth has served as Manpower Group North America's Chief Legal Officer since 2000. He also serves on the company’s Global Leadership Team, Global Legal Lead Team and North American Lead Team. Mark is recognized as an expert on legal issues affecting the U.S. workplace and is frequently quoted in media from The Wall Street Journal to 60 Minutes. He is also a past Chair of the American Staffing Association and is a certified Senior Professional in Human Resources. Contact him at mark.toth@manpowergroup.com.