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EEOC's New Strategic Plan Puts Employers on Warning

lu_hwe_logo.jpgOn December 17, 2012, the The U.S. Equal Employment Opportunity Commission ("EEOC") released its Strategic Enforcement Plan ("SEP") for fiscal years 2012-2016. In the enforcement plan, the EEOC provided six key areas of enforcement which deserve national priority. These national priorities provide direction to employers on where to most efficiently adapt and revise employment policies in order to avoid potential EEOC issues and violations.

Background
The EEOC is a five member board with members being appointed by the President and confirmed by the Senate. The President designates one member of the board to serve as Chair. The Chair is then responsible for the administrative operations of the EEOC and for the hiring of personnel. The EEOC's General Counsel, is also appointed by the President and confirmed by the Senate, and is responsible for the conduct of litigation pursuant to the agency's statutory authority.

The EEOC is responsible for enforcing Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act of 1967 ("ADEA"), the Equal Pay Act of 1963 ("EPA"), Section 501 of the Rehabilitation Act of 1973, Titles I and V of the Americans with Disabilities Act of 1990 ("ADA"), and Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA").

Strategic Plan
The EEOC's Strategic Plan for Fiscal Years 2012 -2016 directed the Commission to develop a SEP that: (1) establishes priorities for the EEOC; and (2) integrates all components of the EEOC's private, public, and federal sector enforcement. The EEOC prepared the final SEP with the goal and expectation that a concentrated and coordinated approach will result in reduced discrimination in these areas.

    The final SEP identifies six key areas of national priority:
  1. eliminating systemic barriers to employment in recruitment and hiring;
  2. protecting immigrant, migrant and other vulnerable workers;
  3. addressing emerging issues, including age discrimination, LGBT discrimination, and pregnancy accommodation;
  4. enforcing gender-based equal pay laws through directed investigations and Commissioner Charges;
  5. preserving access to the legal system by targeting retaliatory practices; and
  6. preventing harassment through systemic enforcement and targeted outreach.

[See EEOC Strategic Plan at http://www.eeoc.gov/eeoc/plan/strategic_plan_12to16.cfm].

Charges which fall under any of these six categories will be designated as "Category A" priority and result in increased investigatory attention. On the other hand, charges which fall outside of the six categories will still receive attention but with less investigatory resources. It should be noted that category 3 (addressing emerging issues) is viewed as a basis for permitting the EEOC and each of its 15 district offices to adapt and focus on other areas which are not specifically stated in the SEP but are deemed important in a specific geographic region. Id.; see also Stephanie Albrecht, Lauri Damrell, Gary Siniscalco, EEOC Releases its Strategic Enforcement Plan (January 9, 2013), http://www.law360.com/employment.

The 15 District Offices are expected to supplement these priorities with their own District Complement Plans at later dates. These plans will provide more detail specific to our region, but the national priorities provide a good starting point for understanding how employers can best draft or revise policies in order to avoid scrutiny by the EEOC. Additionally, the SEP promises to examine and update the Priority Charge Handling Procedures (which were adopted in 1995) in order to ensure that priority matters, as set forth in the SEP, receive the highest category for enforcement.

Immediate Action
Given these new guidelines, it is apparent that employers should focus on several issues. One area to examine is the hiring process, especially if an employer utilizes physical tests or background checks or sets forth minimum qualifications for hiring, such as a requirement that an employee "must possess [a] CDL." Another area that deserves attention is review processes and policies which might concern migrant or temporarily placed individuals. An additional way to avoid issues is to examine gender bias in compensation and the need for statistical analysis. Employers should likewise conduct an examination of policies regarding leave, such as FMLA. Lastly, ensuring training in workplace for harassment or discrimination as a routine program for employees is a must.

If you have any questions about how to prepare or revise your existing policies or procedures in order to address the EEOC's new SEP, please contact Hoeppner Wagner & Evans LLP.

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