The Equal Employment Opportunity Commission (EEOC) released its new Strategic Enforcement Plan (SEP) this spring that includes six key anti-discrimination priorities that the agency will be focusing on through 2016. These new anti-discrimination enforcement priorities reflect the intent to increase litigation as both a deterrent effect on employers to increase their anti-discrimination policies to prevent discrimination complaints as well as position courts to make law on emerging issues.
Class-Based Recruiting and Hiring Practices
The first EEOC anti-discrimination enforcement priority is to focus on widespread and systemic discrimination in recruiting and hiring practices. Often it is challenging to prove individual cases of discrimination in hiring and discrimination in recruiting. Applicants exist outside of the company and generally have no information about internal practices or the treatment of other applicants. By focusing on class-based practices, the EEOC can collect enough information to prove systemic discrimination.
Focus on Protecting Workers Unaware of Their Rights or Reluctant to Use them
This priority seems most directed towards migrant and immigrant workers who are protected by anti-discrimination statutes but tend not to know about their rights under the anti-discrimination laws or fear using them. Migrant and immigrant workers may be fearful of exercising anti-discrimination rights. They have legitimate fears of losing needed jobs or that their employer will take steps to revoke their work visas.
Emerging Legal Issues under the ADA and Sex Discrimination
The Americans with Disabilities Act (ADA) is a little over twenty years old and the amendments passed in 2010 provided expansive rights to disabled workers. As a result of its relatively young age, there are still many areas of employment disability discrimination law left unsettled or unaddressed. The EEOC intends on focusing broadly on reasonable accommodation cases, as well as pregnancy-related limitations in the ADA.
Another key emerging issue is how Title VII’s sex discrimination and gender discrimination provisions may protect GLBTQI employees. Courts seem to have answered the question that Title VII does not prohibit sexual orientation-based discrimination. However, the courts have taken a less clear approach to transgender discrimination.
Gender-based Pay Discrimination
The EEOC is also going to focus on pay systems resulting in gender-based pay discrimination. Not only does the EEOC appear willing to focus more closely on employee complaints of gender-based pay discrimination, but the SEP specifically encourages the EEOC to independently investigate employers through internal charge processes.
Practices Discouraging Exercise of Individual Rights of employees
Retaliation has long been a focus of the EEOC in its anti-discrimination role. The EEOC decided to focus more on the procedural issues. The EEOC is expanding that focus to include other processes that limit employee rights, such as overly broad waivers and settlement provisions and pursuing employers who fail to retain EEO records required by EEOC regulations.
Harassment: Sexual harassment and other forms of unlawful harassment of employees in Texas
Harassment is prohibited when it is based on any trait or characteristic protected by discrimination law. The EEOC is going to return focus to prohibited forms of harassment through litigation and employee education campaigns. We’ll see if the EEOC seeks expansion of harassment interpretations in employment discrimination law.