Diversity Leadership Council Newsletter
The newsletter of the ISBA’s Diversity Leadership Council

June 2017, vol. 10, no. 1

The EEOC Strategic Enforcement Plan for 2017 to 2021

A month before the Presidential election, the U.S. Equal Employment Opportunity Commission (EEOC) quietly released its updated Strategic Enforcement Plan (SEP) for 2017-2021.1 The SEP highlights enforcement priorities and alerts employers to areas most likely to attract the EEOC’s investigative eye, including the types of charges that the EEOC is most likely to litigate on a complainant’s behalf.

The Dynamic 2017-2021 SEP

The EEOC recognizes that employment law is continuously developing and that related practices are continuously evolving. As a result, this SEP is intended to reflect current issues. This new five-year SEP (which remains in effect until superseded, modified or withdrawn by vote of a majority of members of the Commission) emphasizes:

1. Eliminating Barriers in Recruitment and Hiring. As with the prior SEP, this priority includes exclusionary policies and practices such as “channeling or steering” persons into particular positions due to a protected trait (e.g., race, religion, gender, restrictive application processes, and screening tools for employment).

2. Protecting Vulnerable Workers – Including Immigrant or Migrant Workers, and Underserved Communities from Discrimination. The SEP focuses on discriminatory policies including job segregation, unequal pay, and harassment. The updated SEP emphasizes underserved communities – areas where there may be a lack of legal resources or workers are unaware of their rights due to work status, language issues, financial circumstances, and/or work experience.

3. Addressing Emerging and Developing Issues. Despite courts’ attempts to rein in the EEOC, the agency recognizes the following developing issues worthy of particular scrutiny: age and religious discrimination; coverage of LGBT persons under Title VII; disability discrimination, including qualification standards, inflexible leave policies, and temporary workers; accommodating pregnancy-related limitations; issues related to workers engaged on-demand and in the gig economy, including through staffing agencies, and independent contractor relationships; and “backlash discrimination” against Muslim/Sikh/Arab/Middle Eastern/South Asian communities.

4. Enforcing Equal Pay Laws. Previously focused on gender-based discrimination, the EEOC expanded this priority to all protected classes. In light of this, employers may also see claims of willful protected-class discrimination added to wage and hour disputes.

5. Preserving the Exercise of Rights under the Law. The EEOC targets policies and practices that discourage or prohibit individuals from exercising their rights or disrupt the EEOC’s investigative or enforcement efforts. This includes vague and overbroad waivers and provisions in settlement agreements that prohibit filing EEOC charges or assisting in the investigation or prosecution of claims. Unlike the prior SEP, this SEP removes “retaliatory actions” due to the EEOC’s inconsistent application, shifting the focus to “Significant Retaliatory Practices” that effectively dissuade others from exercising rights (e.g., terminating the HR manager for investigating a complaint to send a message to other employees to not complain in the first place).

6. Preventing Systemic Harassment. The EEOC’s focus includes prevention programs (training and outreach) to deter future violations.

The third priority is of particular significance as it may lead to a circuit split. On July 28, 2016, a three-member panel of the Seventh Circuit Court of Appeals in Hively v. Ivy Tech Community College held that sexual orientation claims were not cognizable under Title VII.2 This case originated in Indiana when Vice President Pence was governor and passed a law which allowed businesses, based on religious beliefs, to refuse to provide services to LGBT persons (such as a restaurant refusing to cater a same-sex wedding).3 Subsequently, the Seventh Circuit vacated the July 28, 2016 decision, and agreed to a rehearing en banc, which was heard on November 30, 2016.4 Until the Seventh Circuit’s en banc opinion issues, the EEOC’s enforcement of LGBT rights under Title VII remains tenuous.

The $482 Million Question

Understanding the SEP is important. In fiscal year 2016, the final year of the 2012-2016 SEP, the EEOC secured more than $482 million for those who alleged discrimination in the workplace – both private and federal – resolving 97,443 open charges.5 Of these, 1,650 charges were resolved with $4.4 million recovered for individuals with LGBT sex discrimination charges. For 2013 through 2016, there were 4,000 such charges and $10.8 million recovered. The EEOC also resolved 139 lawsuits, and filed 86 new lawsuits in 2016 (55 individual suits and 31 with multiple plaintiffs). At the end of 2016, the EEOC had 168 cases on its active docket. And while the EEOC is proud of its work, it is not resting. Indeed, the EEOC needs to justify its work to receive its appropriations funding – there are no filing fees or other costs to support the EEOC.6

Where Is This Going?

The fate of the EEOC and its SEP remains to be seen. On January 20, 2017, when Republican Donald J. Trump was inaugurated with a Republican Congress, several labor and employment-related politically-appointed seats were vacant, including: U.S. Supreme Court (1 seat); U.S. Department of Labor Secretary; U.S. EEOC (1 of 5 Commissioners & the General Counsel); and National Labor Relations Board (2 of 5 Members, with the General Counsel’s term set to expire in November 2017).7

On January 25, 2017, President Trump appointed Commissioner Victoria Lipnic to serve as the EEOC Acting Chair, bumping Jenny Yang (serving since 2014) out of that spot.8 President Barack Obama appointed Commissioner Lipnic for two terms, with the current ending on July 1, 2020. Prior to the EEOC, Commissioner Lipnic was a management-side attorney, and from 2002-2009 served as the U.S. Assistant Secretary of Labor for Employment Standards overseeing Wage & Hour Division, OFCCP, and Office of Workers’ Compensation Programs, and OLMS.

As both Commissioners Lipnic and Yang were current Commissioners, a vacancy remains, and it is unlikely that the SEP will be superseded, modified, or withdrawn in the near future based on Commissioner Lipnic’s appointment. However, as the General Counsel is responsible for identifying charges that the EEOC should pursue on behalf of the complainants and which cases should be filed in federal district court, this vacancy may result in the EEOC pushing fewer cases beyond the investigation and conciliation framework.

Moreover, it would seem that some of the points of emphasis can be interpreted to conflict or not be in line with President Trump’s stated positions on topics such as undocumented workers and transgender rights under Title IX. At this point though, the EEOC continues to operate as usual and has not had any significant changes in how it operates or its Strategic Enforcement Plan for 2017-2021.

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1. U.S. EEOC, Press Release: EEOC Updates Strategic Enforcement Plan (Oct. 17, 2016), available at https://www.eeoc.gov/eeoc/newsroom/release/10-17-16.cfm (last accessed Feb. 7, 2017); U.S. EEOC, Strategic Enforcement Plan, Fiscal Years 2017 – 2021, available at https://www.eeoc.gov/eeoc/plan/sep-2017.cfm (last accessed Feb. 7, 2017).

2. Hively v. Ivy Tech Community Coll., No. 15-1720, 830 F. 3d 698 (7th Cir. 2016) (as amended Aug. 3, 2016).

3. Ind. Religious Freedom Restoration Act, Ind. Gen. Assembly 2015 Session, Pub. L. 3 (Mar. 26, 2015), available at https://iga.in.gov/legislative/2015/bills/senate/101#document-92bab197 (last accessed Feb. 7, 2017).

4. Hively, No. 15-1720, 2016 WL 6768628 (7th Cir. Oct. 11, 2016); 7th Cir. Ct. of Ap., Public Access to Oral Arg. Recordings, available at http://media.ca7.uscourts.gov/oralArguments/oar.jsp?caseyear=15&casenumber=1720&listCase=List+case%28s%29 (last accessed Feb. 7, 2017).

5. U.S. EEOC, Press Release: EOC Releases Fiscal Year 2016 Enforcement and Litigation Data (Jan. 18, 2017) available at https://www.eeoc.gov/eeoc/newsroom/release/1-18-17a.cfm (last accessed Feb. 7, 2017).

6. U.S. EEOC, Congressional Oversight, available at https://www.eeoc.gov/eeoc/legislative/oversight.cfm (last accessed Feb. 7, 2017).

7. U.S. Sup. Ct., Biographies of Current Justices of the Supreme Court, available at https://www.supremecourt.gov/about/biographies.aspx (last accessed Feb. 7, 2017); U.S. DOL, Office of the Secretary, available at https://www.dol.gov/agencies/osec (last accessed Feb. 7, 2017) (Deputy Assistant Secretary for Operations in the Office of the Assistant Secretary for Administration and Management Edward Hugler began serving as the Acting Secretary of Labor since Jan. 20, 2017); U.S. EEOC, The Commission and the General Counsel, available at https://www.eeoc.gov/eeoc/commission.cfm (last accessed Feb. 7, 2017); NLRB, The Board, available at https://www.nlrb.gov/who-we-are/board (last accessed Feb. 7, 2017). The author recognizes that these positions may be nominated and confirmed prior to publication.

8. U.S. EEOC, Victoria A. Lipnic Acting Chair, available at https://www.eeoc.gov/eeoc/lipnic.cfm (last accessed Feb. 7, 2017); U.S. EEOC, Jenny R. Yang, Commissioner, available at https://www.eeoc.gov/eeoc/yang.cfm (last accessed Feb. 7, 2017).

 

This article was originally published in the Kane County Bar Association’s Bar Briefs April 2017 Diversity issue.

Noah A. Frank is an attorney in SmithAmundsen LLC’s Labor & Employment Group. He may be reached at nfrank@salawus.com or 312-455-3905.