EEOC Enforcement Plan Signals Shift to Systemic Cases

The Equal Employment Opportunity Commission recently unveiled its revised draft strategic enforcement plan, providing a blueprint of the agency's highest-priority cases for the next four fiscal years.

The revamped strategic enforcement plan (SEP), released last month, builds upon the priorities of the EEOC's Systemic Task Force, a program adopted in 2006 with the goal of focusing more on systemic cases—those that indicate widespread abuses of EEOC rules in a particular industry, profession, company, or geographic area, the agency says, rather than devoting limited resources to specific individual complaints.

According to the EEOC, “targeted enforcement efforts will have the broadest impact to prevent and remedy discriminatory practices in the workplace.” These cases are often based more on statistical analysis and data, rather than on individual grievances.

What makes the EEOC's latest plans especially disconcerting to companies, however, is the significantly expanded scope of such cases, say corporate lawyers.

“This plan seems to indicate that the EEOC's overreaching goal is to increase the amount of systemic discrimination cases that they litigate,” says Steven Gutierrez, a partner with law firm Holland & Hart. “Those systemic cases bring with them much litigation risk to employers.”

With the comment period closed Sept. 18, now comes the waiting to see how the EEOC will respond to the 71 letters it received in response to its controversial enforcement plans. Since the EEOC is in the process of reviewing all the comments, “we don't know what, if any, revisions will be made,” says EEOC Acting Director of Communications Christine Nazer. Nor does the agency have a timetable for when a final enforcement plan will be released, she says.

One particular area of concern focuses on the “serious flaws” that arise when a discrimination case relies on a massive class, as well as on statistics and other generalized data, according to the Association of Corporate Counsel in a comment letter to the EEOC.

Citing the U.S. Supreme Court's decision in Wal-Mart v. Dukes, the ACC wrote: “The cases that the enforcement plan encourages the EEOC to focus upon would be equally massive, involve myriad separate employment decisions, and lack any ‘glue' linking them together.”

The ACC further criticized the EEOC's intent to feed its dropped cases to private attorneys. “This means that the EEOC will find itself actively encouraging plaintiffs' lawyers to pursue cases that the Commission thinks are too weak to pursue,” the ACC wrote. “The EEOC has many valuable missions, but actively assisting private plaintiffs' lawyers to pursue potentially frivolous litigation against employers should not be one of them.”

Concerns also focus around the EEOC's intent to integrate its administrative activities with its legal department. The reason that's problematic, says critics of the plan, is that investigations are supposed to remain neutral at the administrative charge stage. “The whole point is to see if there are any problems, and if there are, to give the company a chance to voluntarily fix those problems,” says Christopher DeGroff, a partner with law firm Seyfarth Shaw.  Pairing up its investigative staff with its legal staff raises “serious problems with whether or not that investigation truly is impartial,” he says.

The shift in EEOC's enforcement plans come at a time when discrimination filings are at an all-time high. In fiscal year 2011, the EEOC received 99,947 charges of discrimination—the highest number in the agency's 46-year history. 

High Priorities

Highest on the EEOC's list of nationwide priorities is systemic discrimination in recruitment and hiring practices. Traditionally, investigations of hiring discrimination have been limited to the territories of each of the EEOC's 15 district field offices.

“The EEOC clearly intends to further ramp up its already aggressive subpoena efforts.”

—Paul Patten,

Partner,

Jackson Lewis

Some of those cases will now be coordinated at the national level and the SEP will “guide prioritization of investigations and case selection.” It further directs each EEOC district to develop their own District Complement Plans by March 31, 2013, calling on them to identify their own enforcement priorities.

Easy access to data, documents, and other potential evidence of discrimination in recruitment and hiring makes the EEOC “better situated to address these issues than individuals or private attorneys who have difficulties obtaining such information,” the SEP states.

Read between the lines, says one employment litigation attorney.  “The EEOC clearly intends to further ramp up its already aggressive subpoena efforts,” says Paul Patten, a partner in the employment litigation practice of law firm Jackson Lewis.

The practical effect on companies is that they must closely review their recruitment and hiring practices to ensure that they meet the EEOC's standards—an area that many companies currently are not efficiently addressing. “Most employers are pretty good at avoiding intentional discrimination,” says Patten. Where they are not so well-versed is with hiring and recruitment practices that potentially have a disparate impact, he says.

Specifically, the EEOC identifies screening tools—pre-employment tests, background screens, and date of birth screens in online applications—as particular employment practices of interest that often adversely affect protected category of individuals. To that end, companies should pay special attention to EEOC guidance issued in April on how to use criminal background checks under Title VII in making employment decisions.

The most controversial aspect of the guidance prohibits companies from implementing blanket exclusions on applicants with a criminal history. Rather, companies must develop a “targeted screen” that considers “at least the nature of the crime, the time elapsed, and the nature of the job.”

DeGroff advises companies to self-audit hiring practices to watch for any red flags. “Self audit the numbers that are coming out of those hiring practices, and figure out early on if there are any statistical disparities,” he says.

Simply depending on a third-party entity to make hiring decisions on the company's behalf, or to maintain its applicant tracking system, does not shield against liability. It is important companies are aware of what questions vendors are asking job applicants and what data they are maintaining, Patten advises.

GUIDING PRINCIPLES

Below is a list of the Equal Opportunity Employment Commission's key principles for implementing a strategic enforcement plan:

The Commission is guided by the belief that targeted enforcement efforts will have the broadest impact to prevent and remedy discriminatory practices in the workplace. Targeted enforcement also supports effective management of the agency's charge inventory, as a clearly defined set of priorities informs categorization of charges to promote timely and efficient resolution. Finally, the Commission recognizes that in order to make the best use of limited resources, the agency will have to undertake an integrated approach to its work, one that mobilizes all segments of agency operations and emphasizes effectiveness, efficiency and consistency.

1. A Targeted Approach. A targeted approach means focused attention on a clearly-identified set of issues and implementation strategies.

A targeted approach contemplates that certain priorities will receive a greater share of agency time and resources, even as the Commission carries out its statutory obligations. Federal agencies, as well as private entities, often utilize targeted enforcement of specific practices or industries to secure compliance while managing their limited resources. Indeed, the Priority Charge Handling Procedures (PCHP), adopted by the EEOC in 1995, specified that priorities under the National Enforcement Plan and local enforcement plans would be the top category of charges in the investigative process. For agencies that receive complaints, this form of targeting shifts the enforcement paradigm from complaint-driven to priority-driven. It also provides agency leadership and staff with clear guidance regarding the appropriate allocation of available resources.

2. An Integrated Approach. An integrated approach ensures the full use of communications, outreach, education, training, research, and technology as tools to advance the agency's overall mission in concert with administrative enforcement (investigations, mediations, and conciliations) and legal enforcement (litigation, amicus curiae participation, and policy development in the private and state and local government sectors, and hearings and appeals in the federal sector). An integrated approach also envisions collaboration and coordination among staff, offices, and program areas and promotes the sharing of information and strategies. Moreover, an integrated approach requires that all internal agency plans, policies, and procedures be designed and/or reconciled to reduce inefficiency and inconsistency, to maximize customer service, and to further the ultimate goals of the agency.

An integrated approach also recognizes that, where possible, enforcement in all three sectors should be coordinated and consistent. Further, Commission policies and positions that apply to private employers and state and local governments should, where applicable, be applied to the federal government as an employer as well.

3. Accountability. No organization can operate well without consistent standards of quality and service. At the same time, an organization cannot operate well if every decision is made centrally. The SEP sets forth clear standards for communicating with the Commission, so that the Commission may exercise its statutory responsibilities and ensure that a strategic, integrated and consistent enforcement approach is carried out.

Source: Equal Opportunity Employment Commission.

Employment law experts further recommend that companies include an indemnification clause in their contract with third parties involved in the hiring process on its behalf.

Employers should also train on a regular basis—either semi-annually or annually—supervisors and managers involved in the hiring process so they understand their role, says Gutierrez. “Training is key to making sure that the folks who are responsible for enforcing the policies are doing it in a consistent manner,” he says.

Another high-priority of the EEOC, according to the SEP is, is a greater focus on the protection of immigrant, migrant, and other “vulnerable workers.” In this regard, specific targets include disparate pay, job segregation, harassment, trafficking, and discriminatory language policies.

One potential change in the EEOC's enforcement strategy that companies will welcome is a move away from an all-litigation approach in the areas of harassment and retaliation claims toward a more collaborative approach with employers.

Because harassment and retaliation claims persist, the EEOC said it will be 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.”

Here, the EEOC's intent is to “eliminate barriers on the front-end, rather than litigate them on the back-end and then have people changing policies,” says Gutierrez.

Emerging Issues

Also high on the EEOC's list of enforcement priorities are several emerging issues. These include enforcement of the American with Disabilities Act, reasonable accommodations for pregnant employees, and LGBT (lesbian, gay, bisexual, and transgender individuals) coverage under the sex discrimination provisions of Title VII.

Currently, the EEOC is hamstrung in what it can enforce in these areas, given that Title VII neither prohibits discrimination on the basis of sexual orientation nor expressly requires reasonable accommodations for pregnant employees. Employment law experts say these emerging issues signal that the EEOC will seek to expand administratively the reach of Title VII's enforcement coverage, where traditional legislative efforts have so far failed.

DeGroff says it finds it “somewhat ironic” for all the EEOC's concerns about not having enough resources that the agency is “trying to push the boundaries and the coverage of Title VII, when they're already struggling with enforcing the scope of the law as it is.”

The results for employers over the next couple of years will be an increasing amount of case law in these emerging areas, with the EEOC trying to push the boundaries, and employers and the courts trying to push back.