Employers take caution! The Equal Employment Opportunity Commission (EEOC), the federal agency which enforces discrimination laws, has set its enforcement priorities for the second term of the Obama Administration and they are consistent with themes raised in the presidential campaign. In its Strategic Enforcement Plan, the EEOC laid out six priorities on which the EEOC will focus specific attention in the next four years:
- Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC will direct attention to disparate pay, job segregation, harassment, trafficking and other discriminatory practices and policies affecting immigrant, migrant and other vulnerable workers, who are often unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
- Enforcing Equal Pay Laws. The EEOC will target compensation systems and practices that discriminate based on gender. The Commission particularly encourages the use of directed investigations and Commissioner Charges to facilitate enforcement.
- Addressing Emerging and Developing Issues. The EEOC will focus on emerging issues in equal employment law, including those associated with significant events, demographic changes, developing theories and new laws. The Commission noted the following areas as examples of developing issues: (1) employer coverage and employee qualification under the Americans with Disability Act, reasonable accommodations, and undue hardship; (2) accommodating pregnancy-related limitations; and (3) coverage of lesbian, gay, bisexual and transgender individuals under sex discrimination provisions.
- Eliminating Barriers in Recruitment and Hiring. The EEOC will pursue class-based recruitment and hiring practices that adversely impact protected groups based on race, ethnicity, religion, age, sex, and disabilities. The targeted practices include exclusionary policies, steering individuals into specific jobs due to their protected status, restrictive application processes, and using screening tools (e.g., pre-employment tests, background checks, date-of-birth inquiries).
- Preserving Access to the Legal System. The EEOC will also target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or impede the EEOC’s investigative or enforcement efforts. This includes retaliatory actions, overly broad waivers, settlement provisions that prohibit filing charges with the EEOC or providing information to assist in the investigation or prosecution of claims of unlawful discrimination, and failure to retain records required by EEOC regulations.
- Preventing Harassment Through Systemic Enforcement and Targeted Outreach. The EEOC will seek to deter harassment based on protected classes by systematic enforcement and educating employers and employees.
The EEOC will use the SEP to determine where to apply its resources as far as administrative charges, private enforcement actions, and systematic lawsuits. Employers should evaluate their policies and practices in the identified target areas and consider whether revisions or training are needed.
- Alison Hamer (Los Angeles)