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What Employers Need to Know About the EEOC’s New Strategic Enforcement Plan

Earlier this fall, the United States Equal Employment Opportunity Commission (“EEOC”) released a draft of its new Strategic Enforcement Plan (“SEP”). The SEP includes five overarching priorities.

1. Eliminating systemic barriers in recruitment and hiring.

The SEP states that the EEOC remains of the view that racial and ethnic minorities, older workers, women, and people with disabilities continue to be the subject of discriminatory practices and policies at the recruitment and hiring stages. The draft report notes exclusionary policies and practices, such as restrictive application processes, pre-screening tests, and background screens, which adversely impact protected groups.

2. Protecting immigrant, migrant and other vulnerable workers.

The draft report indicates that the EEOC will continue to target job segregation, harassment, disparate pay, trafficking, and discriminatory language policies which adversely affect workers.

3. Addressing emerging issues.

The EEOC will target the following issues:

  • Americans with Disabilities Act (ADA) Amendments Act issues particularly with respect to ADA defenses relied upon by employers (such as undue hardship, direct threat, and business necessity).
  • LGBT (lesbian, gay, bisexual and transgender individuals) coverage under the Title VII sex discrimination provisions.
  • Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations which are often provided to similarly situated employees.

4. Preserving access to the legal system.

The draft report states that the EEOC will target policies which attempt to prevent individuals from taking advantage of the anti-discrimination statutes and, particularly, the administrative proceedings associated with those statutes and the enforcement of employees’ rights. The EEOC specifically identified the pervasive issue of retaliation and identified it as the “most common discriminatory practice that impedes enforcement of the federal anti-discrimination laws.”

5. Combating harassment.

The draft report identifies harassment as an ongoing and common problem in the workplace and states that the EEOC intends to increase its enforcement efforts to curtail harassment not only with respect to sex, but also with respect to race, color, ethnicity, age, disability and religion.

The SEP provides a window into the EEOC’s current thinking about the problems which warrant the most attention in the workplace and how the agency can most effectively utilize its resources. The SEP identifies the integrated approach which the EEOC intends to take to achieve these priorities. This approach will not only involve increased consultation between the  administrative and legal enforcement staff, but also include education and outreach and the support of private enforcement of the anti-discrimination statutes.

Taken together, the priorities outlined in the SEP, as well as the integrative approach to which the EEOC is committed, provide a useful guide for employers in terms of proactive steps which they should take in the coming years. These steps include, among other things the following:

  • Reviewing, updating and revising applicable EEO and anti-harassment policies.
  • Continuing to train managers on how and why discrimination and retaliation claims are filed and how they can be prevented.
  • Preserving applicable employment records for the appropriate time periods.
  • Ensuring that company policies - - particularly as they relate to leave and the accommodation of individuals with disabilities - - are applied lawfully and consistently.

Marc Engel is an employment attorney at Lerch, Early & Brewer in Bethesda, Maryland who regularly counsels clients on how to comply with state and federal employment statutes, including the American With Disabilities Act, Family and Medical Leave Act, and federal and state wage hour laws. For more information, contact Marc at (301) 657-0184 or mrengel@lerchearly.com.

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This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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