On February 22, 2012, the Equal Employment Opportunity Commission (“EEOC”) announced its Strategic Enforcement Plan for the fiscal years of 2013-2016 (the “Plan”). According to the EEOC, the Plan establishes a framework for achieving the EEOC’s mission to “stop and remedy unlawful employment discrimination” in order to realize “justice and equality in the workplace.” The Plan’s three objectives are to: 1) combat employment discrimination through strategic law enforcement; 2) prevent discrimination through education and outreach; and 3) deliver excellent and consistent service through a skilled and diverse workforce and effective systems.
The specific priorities for the coming years are:
- Targeting class-based recruitment and hiring practices that discriminate against racial, ethnic, and religious groups, older workers, women, and people with disabilities;
- Protecting immigrant, migrant, and other vulnerable workers in matters of disparate pay, job segregation, harassment and trafficking;
- Addressing emerging and developing issues in equal employment law, including developing theories, judicial decisions and administrative interpretations;
- Enforcing equal pay laws by targeting compensation systems and practices that discriminate based on gender;
- Preserving access to the legal system by targeting policies and practices that prohibit or discourage individuals from exercising their rights under the law or that impede the EEOC’s investigative efforts; and
- Preventing harassment through systemic enforcement and targeted outreach.
The EEOC has kept its word in enforcing the new Plan throughout 2013. In November, the EEOC filed suit against a popular Atlanta-area nightclub that violated federal law by subjecting female servers to a pattern of sexual harassment, including requests for sexual favors. When the sexual favors were refused by the women, they were assigned to less profitable sections of the restaurant or were scheduled to less profitable shifts. In October, the EEOC filed suit against Fannin County, Georgia for age discrimination. Fannin County laid off 11 employees when it reduced personnel in its road department—seven of whom were over the age of 60, and four of whom were younger than 60. Within a few months of the layoff, Fannin County allegedly rehired three of the four employees younger than 60, but did not re-hire any of the employees over the age of 60. Finally, in September, the EEOC filed charges against seed and fertilizer manufacturer, the Abatti Group, and its subsidiaries for discrimination based on both disability and genetic information for allegedly forcing applicants to undergo illegal physical examinations and answer questions about their medical conditions.
The EEOC is arguing that examinations aimed to solicit disability-related information as well as family medical history unrelated to the job are in violation of the Americans with Disabilities Act (“ADA”) and the Genetic Information Non-Discrimination Act (“GINA”). The EEOC notes that their decision to sue coincides with “one of the six national priorities identified by the Plan…for the agency to address emerging and developing issues in equal employment law, including issues involving the ADA and pregnancy-related limitations.”
The EEOC has offered a broad range of topics that it intends to target in the coming years. As the EEOC is limited financially, employers should be aware of the increase in systemic suits, similar to the 2006 systemic initiative deployed when the EEOC faced similar budgetary constraints. Systemic suits have been previously defined by the EEOC as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location.”
This alert serves as a reminder to employers to review their policies to ensure compliance with state and federal law, and to pay particular attention to the issues that the EEOC has stated it will address over the next few years.