Thursday, December 20, 2012

EEOC Roadmaps Future Enforcement Focus

While employers should take steps to comply with all applicable legal obligations, it doesn’t hurt to know those areas of compliance that are going to be given particular attention by enforcement agencies. Earlier this week, the EEOC announced its Strategic Enforcement Plan  (“SEP”) for Fiscal Years 2013 – 2016. The SEP gives employers a peek at the measures the EEOC believes are needed to achieve its goal of deterring discriminatory practices in the workplace.

The SEP identifies the following six enforcement priorities:
  1. Eliminating Barriers in Recruitment and Hiring. The Commission will target not only intentional discrimination in the workplace, but disparate impact discrimination (i.e., facially neutral practices that adversely impact particular groups). These include exclusionary policies and practices, the steering of individuals into specific jobs due to their status in a particular group, restrictive application processes, and the use of screening tools such as pre-employment tests and background checks.
  2. Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC intends to focus enforcement efforts on protecting vulnerable employees, including immigrant and migrant workers, who are often unaware of their rights under anti-discrimination laws, and/or reluctant or unable to exercise them.
  3. Addressing Emerging and Developing Issues.  The EEOC seeks to monitor trends and keep ahead of the curve on emerging discrimination issues. The SEP identifies the aging of the workforce and the likely increase in age discrimination claims as one such likely trend. In addition to ensuring adequate enforcement resources, the EEOC seeks to promote greater awareness and other preventative measures.
  4. Enforcing Equal Pay Laws. Targeting compensation systems and addressing inequities based on gender continues to be a focus of the EEOC’s compliance efforts.
  5. Preserving Access to the Legal System.  The EEOC will also continue to focus on employer practices that interfere with the Commission’s ability to enforce anti-discrimination laws. Examples include over-reaching release agreements (often included in severance or settlement agreements) that prohibit filing charges with the EEOC and/or interfere with providing information to the agency. Enforcing anti-retaliation requirements will also be a major focus.
  6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.  The SEP notes that harassment continues to be one of the most frequent complaints raised in the workplace. While much attention is focused on sexual harassment, such claims are significantly outnumbered by harassment claims based on other protected characteristics like race, ethnicity, religion, age and disability. The Commission believes a more targeted approach that focuses on systemic enforcement and an outreach campaign aimed at educating employers and employees will help deter future violations.
The SEP provides a useful preview of issues that will guide the EEOC’s enforcement efforts in the coming years. Employers would be wise to review their policies relating to these issues to confirm compliance and avoid becoming a target of agency action.

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