[Chai R. Feldblum is one of the Commissioners of the Equal Employment Opportunity Commission (EEOC), a five-person Commission charged with enforcing employment anti-discrimination laws in the United States. Prior to her appointment to the EEOC, Chai Feldblum was a Professor of Law at the Georgetown University Law Center from 1991-2009. She has played a leading role in developing legislation to advance disability rights, LGBT rights, and workplace flexibility.]
The Equal Employment Opportunity Commission (EEOC) enters the New Year with the wind at its back. Following the enactment in February 2012 of a four-year Strategic Plan that addressed all aspects of the agency’s work, the Commission met the plan’s first performance measure with the enactment in December 2012 of a Strategic Enforcement Plan for 2013-2016 (SEP).
There are three take-aways from the SEP:
1) The agency’s targeted focus on select areas of law will hopefully result in a demonstrable impact on unlawful discrimination in those areas.
2) An active and engaged Commission will stay abreast of activities undertaken pursuant to its delegated authority.
3) The Commission will take steps necessary to bring coherence and vigor to its federal sector work.
A) A Targeted Enforcement Focus
The SEP establishes a list of priority enforcement areas for the agency. These include:
· Discriminatory class-based recruitment and hiring practices
· Issues affecting immigrant and migrant workers
· Emerging areas of law (such as certain ADA issues; accommodating pregnancy-related limitations; and coverage of LGBT people under sex discrimination law, as it may apply)
· Compensation systems and practices that discriminate based on gender
· Policies and practices that discourage or prohibit individuals from exercising their rights
· Systemic harassment
Meritorious charges raising one of these issues will receive focused attention by EEOC investigators and lawyers. By providing direction to agency staff regarding the issues that require careful review, the priority list will help the EEOC focus its investigatory resources and lead to more timely conciliations if reasonable cause is found in such charges and to more timely litigation if conciliation fails.
Employers and unions would thus do well to review the list of priority areas and be sure their compliance programs are up-to-date regarding these issues. Lawyers representing clients should also be aware that if a client has a meritorious claim in one of these areas, that claim will be getting focused attention.
But the list does NOT mean the agency will be focused only on these issues.
The SEP also reaffirms the agency’s existing Priority Charge Handling Procedures (PCHP). PCHP provides that a meritorious charge of egregious discrimination will get priority attention – regardless of whether the charge concerns an issue that is on the agency’s substantive priority list.
The dual message for employers and unions should thus be clear:
1) Review your compliance programs in the six priority areas noted above to make sure they are up to date regarding these issues.
2) Make sure you have a workplace that is free of any type of discrimination because if a potential charging party comes to the EEOC with an egregious case of discrimination, the agency will give it focused attention.
The single message for applicants and employees should also be clear: the EEOC will be focused, strategic, and effective.
B) An Active and Engaged Commission
In 1996, the Commission delegated its significant authority to commence litigation to its General Counsel and Regional Attorneys under a set of criteria outlined in its National Enforcement Plan (NEP). Delegation of authority was then, and remains now, an essential mechanism for carrying out the agency’s enforcement responsibilities. But it is only when delegation is paired with direction and accountability that good governance results.
In 2012, upon reviewing the sixteen years of delegation, a majority of the Commission through the SEP recognized the crucial role that delegation played in shaping the EEOC’s vigorous litigation program. But the direction and accountability that makes delegation good governance needed some updating.
First, while the original criteria for cases requiring prior Commission approval still stands, the SEP now requires that the Commission see a minimum of one case from each district.
Second, the SEP retains the accountability mechanism that the Commission put in place in 1996 – a quarterly report from the General Counsel on how delegated authority is exercised – but revitalizes it by requiring formal quarterly meetings on delegation.
In addition, through regulations, the Commission has delegated its authority in investigations and conciliations to its District Directors and its authority in providing remedial relief in the federal sector to its Office of Federal Operations. The SEP now establishes a new quarterly meeting for the Office of Field Programs to report on important investigations and conciliations and the Office of Federal Operations to report on significant rulings by Administrative Judges.
Finally, the SEP requires a new set of multi-year planning documents. I know these might raise a yawn from some readers, but speaking from inside the agency—these planning documents can be very helpful. For the first time, the agency will have a national, multi-year communications, outreach and education plan, and a multi-year plan for updating its subregulatory guidance. And the Commission will vote on a new multi-year research plan, placing the agency at the forefront of proactive research and analysis.
C) A Coherent and Vigorous Federal Sector Program
Congress has created an internal grievance procedure for federal applicants and employees that is in addition to, and separate from, such individuals’ private right of action in court. Under this internal system, the Commission has the right to order remedial relief for applicants and employees if it finds that a federal agency has engaged in discrimination.
In developing the SEP, the Commission heard from various stakeholders concerned with the disparate parts of the federal sector program. The SEP now provides that the Commission will vote in 2013 on a plan to establish a coherent structure for its federal sector work. That is a good thing.
* * *
Finally, for those who believe the SEP inappropriately elevates enforcement over education or improperly reinforces an “integrated” system of enforcement, I have only this to say: read the statute. Congress empowered the Commission to prevent any person from engaging in any unlawful employment practice “as hereinafter provided.” As the statute then provides, the means by which the Commission is to prevent unlawful employment practices is by investigating charges, attempting voluntary conciliation in charges where there is reasonable cause to believe discrimination has occurred, and litigating if conciliation fails. There is only one Commission on whom these obligations are placed, which is why the Supreme Court underscored the importance of the “integrated, multi-step enforcement procedure” established by the statute. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359-60 (1977). In addition, while Congress expects the EEOC to engage in education and technical assistance (as those activities are provided for elsewhere in the statute), those are not the primary responsibilities placed on us by Congress.
The EEOC’s SEP for 2013-1016 is a dynamic document that has the potential to do great good. I recommend reading it!
[The opinions expressed in this post are those of Commissioner Feldblum alone and do not reflect the opinions of the EEOC, the Federal Government, or any individual attorney. The opinions provided are for informational purposes only and are not for the purpose of providing legal advice.]