The U.S. Equal Employment Opportunity Commission (EEOC) put all its cards on the table in its new strategic enforcement plan, which the commission approved Dec. 17, 2012. The plan noted that the commission will focus enforcement efforts on hiring, pay and harassment.
So there shouldn’t be much guesswork among employers in prioritizing their EEO compliance efforts for 2013 or, theoretically, for the next four years covered by the plan.
The plan also identified three other enforcement priorities—protecting immigrant, migrant and other vulnerable workers; addressing emerging and developing issues; and preserving access to the legal system. But these are more nebulous than the priorities on pay, hiring and harassment, which Barry Hartstein, an attorney at Littler Mendelson in Chicago, called a “triple play” that “employers need to not ignore.”
The EEOC didn’t say which of its six priorities is the most important, or claim to list them in order of priority. But Hartstein thought there might be some significance to the fact that eliminating barriers in recruitment and hiring was listed first.
Though the guidance mentions background checks only once, Hartstein said it’s important to read between the lines and take into consideration what the plan says in light of recent EEOC initiatives. And its most significant guidance last year undoubtedly was the much-publicized enforcement guidance on individualized assessment of criminal conduct in background screening.
Hartstein said the agency is focusing on background screening because it can play a pivotal role championing lawsuits in this area. Few lawyers in private practice will touch these cases because of the time and expense required to litigate them. He expects test cases in early 2013.
The guidance on background checks discourages employers from using blanket exclusions of individuals who have been convicted of crimes, which employers are struggling with, Hartstein said. “The guidance is clear as mud about what employers are expected to do,” he remarked, saying more guidance from the EEOC and courts is needed.
But employers should at least be consistent, he suggested. For example, employers should consider whether they are ignoring drug convictions against young white job candidates, writing them off as youthful experimentation, but jumping to the conclusion that the drug convictions of young black job candidates suggest something more sinister, like drug dealing.
The one surprise in the strategic enforcement plan was its inclusion of enforcing equal pay laws to target practices that discriminate based on gender—a priority that didn’t appear in the agency’s draft plan, Hartstein noted.
But it isn’t much of a surprise, he added, in light of the emphasis President Obama has placed on unequal pay, such as signing the Lilly Ledbetter Fair Pay Act early in his presidency.
How quickly enforcement will come in this area is anyone’s guess, Hartstein said, noting that the EEOC has filed only two Equal Pay Act lawsuits in the last two fiscal years.
But employers should pay attention, he cautioned. This is one area where the EEOC can show up at an employer’s door without a complaining party through directed investigations and commissioner charges, which the strategic enforcement plan specifically encourages to fight pay discrimination.
Hartstein urged employers to conduct pay audits protected by the attorney-client privilege, noting that fighting pay discrimination also is a priority with the Office of Federal Contract Compliance Programs.
The last priority mentioned by the commission isn’t exactly new: preventing harassment through systemic enforcement and targeted outreach. In the last four years, a third of the agency’s systemic discrimination suits challenged workplace harassment.
But settlements of harassment suits of all stripes continue to pile up, Hartstein noted, highlighting the following EEOC settlements of sexual and race harassment:
$8 million—Alleged sexual harassment claims involved 82 female workers with payments ranging from $30,000 to $70,000 (EEOC v. International Profit Associates, No. 01-CV-4427 (N.D. Ill. 2011)).
$2 million—Alleged sexual harassment by a fast food restaurant, including teenagers, involving comments, innuendo and touching (EEOC v. Sonic Drive-In, No. 09-CV-953 (D. N.M. 2011)).
$1 million—Compensatory damages awarded to 10 former McDonald’s employees, plus outside monitor and hotline (EEOC v. Missoula Mac Inc., No. 3:10-cv-00267-bbc (W.D. Wis. 2012)).
$11 million—Alleged hangman’s nooses, racial graffiti, comments, harsher discipline and discriminatory work assignments involving black workers by a freight hauling company (Brown v. Yellow Transportation Inc., No. 08 CV 5908, and EEOC v. Yellow Transportation Inc., No. 09 CV 7693 (N.D. Ill. 2012)).
Harassment is being targeted partly because it is “one of the most frequent complaints raised in the workplace,” the strategic enforcement plan noted. “Harassment claims based on race, ethnicity, religion, age and disability combined significantly outnumber even sexual harassment claims in the private and public sectors.”
Another reason the commission may be making the fight against harassment a priority is that this stand isn’t controversial.
The strategic enforcement plan showed the agency is taking steps to not inadvertently stir up controversy in coming years by directing its general counsel to get the full commission’s approval before litigating cases likely to be controversial, such as recently adopted commission policies.
The plan isn’t devoid of controversy though. For example, one of the emerging issues it identifies is the coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions.
Though important, the EEOC’s national priorities aren’t the be-all and end-all in EEO enforcement. The strategic enforcement plan itself notes that “local challenges demand attention as well” and directed its district offices and regional attorneys to develop a district complement plan identifying local priorities and how the offices will implement the plan’s priorities.
Allen Smith, J.D., is manager, workplace law content, for SHRM.