EEOC Announces Plan for Class Warfare

Why should employers care about what the EEOC has on its to-do list for the next four years? Well, you’ve heard the phrase, “keep your friends close and your enemies closer,” right? Kidding, just kidding, people! Geez!

But, seriously. The EEOC is working on a revised draft of its Strategic Enforcement Plan (SEP) for 2012-2016 and employers should pay close attention. The SEP offers employers important insight into the priorities of the EEOC. So don’t look a gift horse in a mouth. exercising their rights constitute systemic barriers to the legal system.

Class Warfare is EEOC’s Top Priority
Okay, so maybe this is an overly dramatic way to describe the EEOC’s top priority. So sue me. As termed by the EEOC, “System Initiative” translates roughly to a continued focus on class litigation intended to eradicate several types of systemic discrimination:

1. Hiring. The SEP identifies class-based hiring discrimination as a main focus, including discriminatory pre-employment tests, background screening, and date-of-birth screening.

2. Protection of “immigrant, migrant, and other vulnerable workers.” Particular areas of focus in this regard include disparate pay, job segregation, harassment, trafficking, and discriminatory-language policies.

3. “Emerging Issues” identified in the Draft Plan include:

a. ADA Amendments Act issues
b. LGBT coverage under Title VII sex discrimination provisions
c. 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. This is the big one, folks. There are two components to this initiative. Both should get your attention.

a. Prioritization of the investigation of retaliation claims. Not only is retaliation the most commonly asserted claim but it is also the most difficult to defend. Per the SEP, the EEOC believes that retaliation is a barrier to justice because it discourages employees from exercising their rights. (Hard to argue with that, really).

b. “Systemic barriers” to justice. Think, “settlement and severance agreements.” The EEOC says that “overly broad waivers” and releases that unfairly discourage employees from exercising their rights constitute systemic barriers to the legal system.

Implementation
The EEOC does not envision the Plan as a one-size-fits-all approach. To the contrary, it will require that each District develop a District Complement Plan to the SEP by March 29, 2013. These localized Plans are to identify how that particular Office will implement the SEP priorities, as well as identify its own local enforcement priorities.

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