On September 4, 2012, the EEOC released for comment its draft Strategic Enforcement Plan (SEP). The EEOC invited the public to comment on the SEP by September 18, 2012, with a plan to vote on the draft at the end of September 2012 and to have the SEP become effective October 1. But that time has now passed with no word from the Commission. This suggests that the Commission is closely evaluating the comments submitted and considering which, if any, to incorporate into the final plan. There may also be disagreement within the Commission over portions of the draft plan. As a result, we do not expect the EEOC to issue the final SEP until mid-October at the earliest.
The published draft SEP explains what the Commission regards as a targeted and integrated approach to have the broadest impact to prevent and remedy discrimination, focusing its national priorities principally in five key areas: (1) eliminating systemic barriers to employment in recruitment and hiring; (2) protecting immigrant, migrant and other vulnerable workers; (3) addressing emerging issues, such as LGBT discrimination and pregnancy accommodation; (4) preserving access to the legal system by targeting retaliatory practices; and (5) combating harassment. The draft also says that the Commission intends that its national priorities be supplemented by local enforcement plans to be developed by the EEOC’s 15 District Offices. There was concern over whether these all should be national priorities and that some other significant issues are omitted. One obvious one is equal pay, which President Obama made a major priority early in his presidency when he established the National Equal Pay Enforcement Task Force. Another is the significant problems faced by older workers both in layoffs and in hiring.
Some parts of the draft plan especially disappointed employers and were subject to critical comments, including comments we submitted. First, while the SEP affirms the need for collaboration and consultation between its investigators and its attorneys, the reality for years has been that field compliance staff have done a poor job in many investigations, in reaching reasonable cause findings, and making excessive conciliation demands. The draft plan’s soft concept of collaboration and consultation is underscored by the fact that it offers Administrative Compliance Managers an out, telling them that they should still make every effort “to ensure that this collaboration does not cause unnecessary delay in the administrative process.” Field Directors therefore can and do tell field office attorneys to stay out-of-the-way. Both employers and charging parties are dissatisfied with the administrative process and shoddy investigations. Field lawyers may play little or no role in whether a systemic investigation should take longer, or be finished sooner, or in fashioning a relevant request for information that is focused and not overly broad, in order to ensure that a quality, focused and relevant investigation is done. Nor is there any guidance on when and how to resolve a charge when common sense militates towards doing so. There is no clear process that allows investigators and enforcement managers to ask: (1) Is there enough to continue forward? (2) What do we really need to assess these claims? and/or (3) Is this a case where some approach to settlement or resolution short of a full Cause Determination is warranted.
Stay tuned to see if EEOC revises and improves the draft SEP.