What employers can look for under EEOC’s strategic plan

The EEOC enforces the nation’s employment discrimination laws. Its strategic plan, issued every five years, presents its overarching plan for carrying out its mission relative to issues emerging in the workplace and the resources available to the commission. The strategic plan gives employers an insight into the EEOC’s enforcement strategy.

THE LAW The EEOC’s primary enforcement focus is Title VII of the Civil Rights Act of 1964, which bars employer discrimination based on race, color, religion, national origin and sex. The Civil Rights Act was amended in 1991 to permit jury trials and awards of compensatory and punitive damages when discrimination is intentional.

Another amendment to the Civil Rights Act, the Pregnancy Discrimination Act, bars discrimination against employees due to pregnancy. The Equal Pay Act of 1963, guarantees equal pay for equal work for men and women.

The EEOC also enforces the Age Discrimination in Employment Act of 1967, Title I of the ADA, Sections 501 and 505 of the Rehabilitation Act of 1973 and the Genetic Information Nondiscrimination Act.

WHAT’S NEW The EEOC Strategic Plan for Federal Fiscal Years 2018-2022 is the first to be released by the Trump administration, under the leadership of Acting EEOC Chair Victoria Lipnic.

Two of the five EEOC seats are currently empty. Its budget requests for FY 2018 and 2019 stand at $363,807,086, almost $13 million less than in 2017. The plan makes numerous references to doing more with less.

At its core, the strategic plan is a guide to EEOC enforcement priorities. The EEOC has two major enforcement mechanisms at its disposal: conciliation and litigation.

Conciliation—essentially seeking settlements—is clearly the favored approach under the new strategic plan. For the government, it has the advantage of being far less expensive than filing and prosecuting lawsuits.

One of the ways the EEOC plans to get more bang for its buck is to attempt to include some sort of equitable relief in about 80% of its settlements. Equitable relief basically means “not just money.” Most often, that takes the form of securing employer commitments to update and enforce anti-discrimination policies and provide anti-discrimination training.

The strategic plan calls for targeted equitable relief—defined as nonmonetary relief that targets specific discriminatory practices—to apply to about 15% of settlements.

The new strategic plan also envisions increasing education and outreach efforts that target workers who have historically been discriminated against. Small employers can expect to see more outreach, too.

HOW TO COMPLY The plan shows that the EEOC is attempting to be more equitable in its investigating practices. The commission’s emphasis on equitable relief means that employers that already have anti-discrimination training in place will fare better during investigations.

Systemic discrimination

A key point in the strategic plan is the commission’s continued emphasis on combatting systemic discrimination. That is defined as a “pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.”

The EEOC believes it can accomplish more by pursuing systemic cases than individual complaints, and so may be more likely to litigate systemic cases instead of trying to settle them.

Advice: If the EEOC challenges your policies or practices as discriminatory, consult your attorney before deciding whether to fight the EEOC in court. Given the commission’s strategic goals, an expensive fight likely awaits stubborn employers. Amending the policy may be the best approach.

Historic bias, small business

The EEOC has also vowed to increase its outreach to populations that have historically suffered discrimination, and to small businesses, as well.

Historically discriminated-against populations include more than just minorities. The plan specifically mentions “particularly vulnerable communities that may be unfamiliar with our laws, such as those who are new to the workforce or low-skilled workers and new immigrants.”

Given the current furor over sexual harassment, it is likely the EEOC will devote resources to its “Youth at Work” outreach to educate teen workers about their rights. Employees in low-paying fields such as hospitality or garment work are likely to get attention, too, as these industries historically have attracted immigrants who face language barriers and may not be familiar with anti-discrimination laws.

The strategic plan also specifically notes new and small businesses that “are less likely to have in-house human resources professionals to assist them with compliance.” The plan calls for increased outreach in the form of free and fee-based training.

Your anti-bias strategy

Regardless of size, employers must stay up-to-date on anti-discrimination laws. Two broad strategies of your own will help you comply:

1. Train management to avoid inadvertently discriminating against job applicants and employees

2. Ensure policies and procedures comply with the law. Consult your attorney to determine if your policies, procedures and training are up to snuff.