Labor: The EEOC tackles discrimination

The agency’s draft strategic plan includes immediate implications for employers

The Equal Employment Opportunity Commission’s (EEOC’s) recent release of its draft four-year strategic plan gives interested parties a vision of how the agency plans to position itself long term. However, it also gives some insight on immediate implications for employers about the EEOC’s efforts to generate the underlying charges of discrimination. 

The draft strategic plan, which is open for comment until Feb. 1, “establishes a framework for achieving the EEOC’s mission ‘to stop and remedy unlawful employment discrimination,’ so that the nation might soon realize the Commission’s vision of ‘justice and equality in the workplace.’”

The strategic plan identifies the following objectives and outcome goals:

  • Combat employment discrimination through strategic law enforcement with the outcome goals of: (1) having a broad impact in reducing employment discrimination at the national and local levels; and (2) remedying discriminatory practices and securing meaningful relief for victims of discrimination.
  • Prevent employment discrimination through education and outreach with the outcome goals of: (1) members of the public understand and know how to exercise their right to employment free of discrimination; and (2) employers, unions and employment agencies prevent discrimination and better resolve EEOC issues, thereby creating more inclusive workplaces.
  • Deliver excellent service through effective systems, updated technology, and a skilled and diverse workforce with the outcome goal of all interactions with the public being timely, of high quality and informative.

While the above objectives and outcome goals are commendable, a close reading of the draft strategic plan identifies the following immediate area of concern for employers:

  • The EEOC will establish a Strategic Enforcement Plan by Sept. 30 that will “ensure a targeted, concentrated, and deliberate effort to identify priority issues and practices that have a significant impact on employees and employers.” The Strategic Enforcement Plan will establish a baseline in fiscal year 2012 with the goal to “increase targets” [systemic cases] by yet-to-be-determined percentages annually between 2012 and 2016. The plan identifies systemic cases as “those that address a pattern, practice or policy of alleged discrimination and/or class cases where the alleged discrimination has a broad impact on an industry profession, company, or geographic area.”

Employers should anticipate the following:

  • A concentrated effort by the EEOC to educate employees about employment practices that could be perceived as an alleged pattern, practice or policy of discrimination. In fact, another objective of the EEOC’s strategic plan is to “prevent employment discrimination through education and outreach.” While the plan notes that the EEOC’s 2011 outreach programs were well attended and successful, it further notes that the agency “is continually evaluating its education and outreach program to ensure that it is impacting those persons ‘who historically have been victims of employment discrimination and have not been equitably served by the Commission’ as required by Title VII. This may include targeting certain persons within a protected class, including persons of color under the age of 30, low-skilled workers, and new immigrants, who may be unfamiliar with the nation’s equal employment laws.” 
  • Overly aggressive preparation of charges of discrimination by the EEOC to include discrimination allegations that may or may not identify a pattern, practice or policy of alleged discrimination and/or class cases where the alleged discrimination has a broad impact on an industry profession, company or geographic area. 
  • Overly aggressive investigations by EEOC investigators of single employee issues in an attempt to generate either a pattern or practice allegation of discrimination. 
  • Increased threats from the EEOC to initiate subpoena enforcement actions when employers balk at providing facility-wide information regarding its workforce as part of the EEOC’s investigation of single employee issues.

While the headlines are accurate when they speak to the EEOC’s intent to boost its prosecution of systemic bias cases, the more immediate concern of employers should be how to effectively address the EEOC’s efforts to generate the underlying charges of discrimination, conduct investigations and fail conciliations necessary to reach its goal of increasing its employer targets during the next four years. 

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R. Anthony Prather

R. Anthony Prather is a partner in the Indianapolis office of Barnes & Thornburg LLP and a member of the firm's national Labor and Employment...

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