Breaking Down the EEOC's Plan

The Equal Employment Opportunity Commission's new Strategic Enforcement Plan highlights six key areas for 2013, but experts agree recruiting and hiring will take up most of the spotlight.  

Wednesday, January 23, 2013
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Employers wanting to get a sense of the Equal Employment Opportunity Commission's priorities going in 2013 would be well-served to spend a few minutes reviewing the agency's Strategic Enforcement Plan.

The final plan, released on Dec. 17, identifies six key areas that are going to be priorities for the agency between now and 2016, including:


*     Eliminating barriers in recruitment and hiring;

*     Protecting immigrant, migrant and other vulnerable workers;

*     Addressing emerging and developing issues;

*     Enforcing equal pay laws;

*     Preserving access to the legal system; and

*     Preventing harassment through systemic enforcement and targeted outreach.

But while all six have been listed as agency priorities, employment attorneys suggest that HR executives might want to pay particularly close attention to the first item on the agency's list -- recruiting and hiring -- as they craft their HR plans for and beyond.

Larry Lorber, a partner in the Washington office of Proskauer, notes that the agency is likely to be much more aggressive in pursuing cases involving the testing and assessment of job candidates.

"If you're administering or presiding over any sort of uniform selection process, be it a test instrument built internally or through a third party, you need to look at those types of HR decisions . . . and how they're being made," Lorber says. "Are the tests validated? Do they have adverse impact on the disabled? Do they have adverse impact based on age?"

Michael Lotito, a shareholder in the San Francisco office of Littler, agrees that employers would be wise to revisit their onboarding and selection processes.

In light of the recent tragedy at the Sandy Hook Elementary School in Newtown, Conn., Lotito says, HR executives need to consider their assessment and selection practices in the context of workplace safety.

"More often than not, unspeakable events [such as Sandy Hook] occur in somebody's workplace," Lotito says.  "So the question then becomes, What's the employer's responsibility in making sure they're creating a workplace that's safe?"

Sure, he says, companies need to meet Occupational Safety and Health Administration requirements.  But they also need to "do a more searching examination of potential candidates."

While the EEOC is focused on the rights of the individual, Lotito says, the employer's responsibilities obviously go well beyond that.

Another part of the hiring process that's going to require greater scrutiny by employers involves social media, says Lotito, adding that a lot of uncertainty surrounds how the agency is going to approach social-media tools and the way employers use them.

"I don't know of a company that has [successfully] created guidelines as far as the screening process and the utilization of these tools -- and how they should and shouldn't be used," he says.

Experts also suggest that employers might want to pay close attention to "emerging and developing issues" identified in the EEOC plan, particularly the Americans with Disabilities Act.

Lorber notes that pending reasonable-accommodation guidelines could have a huge impact on the HR community. "If they reinvigorate or reinstitute those, and issue guidelines that affect the definition of reasonable accommodations, that could be a major issue for HR executives," he says.

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To the surprise of some, the number of cases brought by the EEOC significantly declined last year, from 261 in 2011 to 122 in 2012. But while the agency filed fewer suits, a higher percentage of the litigation was large-scale and systemic.

Some experts predict employers should expect more of the same in 2013.

Christopher DeGroff, co-chair of the Complex Discrimination Litigation Practice Group at Seyfarth Shaw in Chicago, believes that several factors may be behind this shift to a "more thoughtful approach," including the fact that the agency was hit in 2011 and 2012 with a number of stinging cases involving its "sue first, aim later" litigation tactics.

DeGroff predicts that employers will be less likely to be sued in 2013, compared to the past, but that they'll likely be facing larger and better litigated lawsuits by the EEOC. "I also believe employers will be more likely to reach pre-suit conciliation with the EEOC than in the past," he adds.

Like Lorber and Lotito, DeGroff identifies hiring as one of the more significant priorities on the EEOC's enforcement agenda.  But he also suggests that employers shouldn't overlook a late addition to the agency's plan.

"The fact that it added enforcing equal pay laws to its [final plan] shouldn't be ignored," DeGroff says. "This suggests to me that there was a significant contingent at the agency pushing for that."

DeGroff also believes "preventing harassment" will continue to be high on the agency's agenda. Regardless of the workforce you have, he says, know that the EEOC is going to be clamping down on employers that fail to address this area.

Mike Schmidt, a member of the Labor and Employment Group at Cozen O'Connor in New York, agrees.

"The EEO has made it clear that it's not just looking at individual cases, but at the policies and practices of companies," he says.

As such, he says, employers would be wise to self-audit their handbooks and policies, either at the beginning or end of each year, to make sure their practices are not violating the law and that supervisors in the trenches are properly implementing them.

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