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Equal Employment Opportunity Commission Issues Draft of Strategic Enforcement Plan (Thursday, November 1, 2012)

Businesses like predictability. This includes knowing what various government agencies may be looking for in enforcing their laws and regulations.

In September, 2012, the U.S. Equal Employment Opportunity Commission released a draft Strategic Enforcement Plan for Fiscal Years 2012 - 2016. The SEP establishes priorities for the EEOC and integrates all components of EEOC's private, public, and federal sector enforcement.

The EEOC describes certain nationwide priorities:

  1. Eliminating Systemic Barriers in Recruitment and Hiring. The EEOC will target class-based intentional hiring discrimination and facially neutral hiring practices that adversely impact particular groups.
  2. Protecting immigrant, migrant and other vulnerable workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory language policies affecting these vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
  3. Addressing Emerging Issues. Emerging issues that EEOC will target include:
    • ADA Amendments Act issues, particularly coverage issues, and the proper application of ADA defenses, such as undue hardship, direct threat, and business necessity;
    • LGBT (lesbian, gay, bisexual and transgender individuals) coverage under Title VII sex discrimination provisions, as they may apply; and
    • Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.
  4. Preserving Access to the Legal System. The EEOC will also target policies and practices intended to discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC's investigative or enforcement efforts. These policies or practices include retaliatory actions; overly broad waivers; settlement provisions that prohibit filing charges with EEOC or providing information in EEOC or other legal proceedings; and failure to retain records required by EEOC regulations.
  5. Combating Retaliation and Harassment. EEOC will refocus 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 retaliation and harassment in the workplace.

The SEP also discusses discrimination charge and litigation priorities. EEOC intends that its 15 District offices will prepare their own supplemental enforcement plans. SEP and district priority charges, except for individual disability, harassment and retaliation charges, are considered the highest priority charges.

Meritorious cases raising SEP or district priority issues will normally be given precedence in litigation recommendations and selection over non-priority issue cases.

EEOC defines systemic cases as pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, occupation, business, or geographic area. Meritorious systemic charges, investigations, and cases that raise SEP priority issues will typically be given precedence over non-priority matters, whether individual or systemic.

The savvy employer will also obtain guidance from past events. The EEOC provides useful fiscal year 2011 statistics.

  • A total of more than 6000 discrimination charges were filed in the United States. Charges filed in Illinois constituted 6.1% of all charges filed within the United States.
  • There were nearly 2000 charges alleging race discrimination. Charges filed in Illinois were 5.6% of all U.S. race discrimination charges filed.
  • There were more than 1300 charges filed alleging sex discrimination. Charges filed in Illinois alleging sex discrimination constituted 4.8% of the total U.S. charges.
  • Claimants charged national origin discrimination more than 600 times. Charges filed in Illinois were 5.1% of all U.S. national origin charges.
  • Charges alleging discrimination based on religion and color were less common. There were 192 charges alleging discrimination based on religion and 148 based on color.
  • There were more than 2200 charges of age discrimination and charges filed in Illinois counted for 9.7% of all U.S. age charges.
  • Charges alleging disability discrimination numbered more than 1300 and charges filed in Illinois were 5.2% of those filed nationally. A smattering of charges alleged violations of the Equal Pay Act - a total of 50 nationwide, and 23 nationwide alleging violations of the Genetic Information Nondiscrimination Act. However, again, charges filed in Illinois were a disproportionate percentage.5.4% of US EPA charges and 9.4% of charges alleging violations of GINA were filed in Illinois.
  • Finally, charges alleging retaliation continue to be common. Nearly 2000 charges alleging all types of retaliation were filed in fiscal year 2011, and of those 5.2% were filed in Illinois. A great percentage of the retaliation charges alleged violations of Title VII; 1589 such charges were filed nationally, and 5.1% of those were filed in the State of Illinois.

Employers are well advised to ensure their employment practices follow the law, particularly in the areas the EEOC has designated as priorities.

· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311
· MLied@howardandhoward.com