Wednesday, September 5, 2012

EEOC Releases Draft Strategic Enforcement Plan

The EEOC released its draft Strategic Enforcement Plan yesterday. I'll highlight the three things that I found the most interesting.

First, the document identifies "emerging issues":
ADA Amendments Act issues, particularly coverage issues, and the proper application of ADA defenses, such as undue hardship, direct threat, and business necessity; 
LGBT (lesbian, gay, bisexual and transgender individuals) coverage under Title VII sex discrimination provisions, as they may apply; 
Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.
Title VII does not expressly protect sexual orientation, and the Pregnancy Discrimination Act/Title VII does not expressly require reasonable accommodations for pregnant employees. Perhaps these "emerging issues" are a signal that the EEOC will seek to expand Title VII's coverage through agency enforcement where traditional legislative efforts have thus far failed (see, Pregnant Workers Fairness Act and ENDA).

Second, the EEOC plans to address waiver and settlement issues:
The EEOC will also target policies and practices intended to discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC's investigative or enforcement efforts. These policies or practices include retaliatory actions; overly broad waivers; settlement provisions that prohibit filing charges with EEOC or providing information in EEOC or other legal proceedings; and failure to retain records required by EEOC regulations.
Drafting waivers and settlements in discrimination matters is one of the trickiest things an employment lawyer does. On the one hand, I look forward to the guidance. On the other hand, it might just be one more twist or turn in an already difficult process.

How do they come up with these priorities anyway? Glad you asked - Third, and finally, the EEOC listed its criteria for selecting priorities:
1. Issues that will have broad impact because of the number of individuals or employers affected; 
2. Issues involving developing areas of the law, where involvement by the leading governmental agency charged with enforcing employment anti-discrimination laws is appropriate; 
3. Issues affecting workers who may lack an awareness of their legal protections, or who may be reluctant or unable to exercise their rights; 
4. Issues involving discriminatory practices that impede or impair full enforcement of employment anti-discrimination laws; and 
5. Issues that may be best addressed by the EEOC given its access to data and research
I just highlighted the areas I found most interesting, but the whole thing is worth a read. Also, this is just a draft . . . for now. If you have any thoughts on the plan, the EEOC would love to hear from you.

Image: EEOC seal used in commentary on EEOC. Not official use.