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This is part of a series of articles by Wright Lindsey Jennings’ labor and employment team examining key trends for employers and the workplace in 2023, authored by attorney Michelle Kaemmerling. The series was featured in Arkansas Business.
In November, the Equal Employment Opportunity Commission (EEOC) released its draft strategic plan for the fiscal years 2022-2026, as required by law. The agency provided a one-month period for public comment, which ended earlier this month.
The plan provides the framework for how the agency will seek to fulfill its stated mission of preventing and remedying discrimination and enforcing civil rights in the workplace. The EEOC has been operating under a strategic plan for fiscal years 2018-2022, so this is the first strategic plan submitted by the agency during the Biden administration.
Created in 1965, the EEOC is the federal agency charged with enforcing federal employment discrimination laws, including Title VII, the Equal Pay Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. Generally, these laws apply to private and state and local government employers with 15 or more employees. The Age Discrimination in Employment Act applies to employers with 20 or more employees, and there is no minimum employee requirement under the Equal Pay Act.
Prior to filing a federal lawsuit under these statutes, an individual is required to exhaust his or her administrative remedies by first filing a charge of discrimination with the EEOC. If the EEOC dismisses the charge, the individual may then choose to file a federal lawsuit on their own. But if the EEOC issues a cause finding, then the EEOC usually sues the employer on behalf of the aggrieved employee unless a settlement is reached through what is called the conciliation process.
The EEOC’s strategic goals set forth in the draft strategic plan are:
- Combat and prevent employment discrimination through the strategic application of the EEOC’s law enforcement authorities
- Prevent employment discrimination and advance equal employment opportunities through education and outreach
- Strive for organizational excellence through the EEOC’s people, practices and technology
These goals really don’t tell us much about what to expect from the agency in the next four years, but the performance measures that accompany the strategic goals shed more light on what shifts in enforcement priorities may be coming. For example, for the first strategic goal, one of the performance measures is that by the end of fiscal year 2025, “90% of EEOC conciliations and litigation resolutions contain targeted, equitable relief.”
When the EEOC finds there is reasonable cause to believe unlawful discrimination occurred, it is required to engage in a conciliation process with the employer prior to filing a lawsuit. This performance measure tells us that, in addition to monetary relief for the employee who filed the charge, employers can expect the agency to require non-monetary relief that will benefit all employees as part of any negotiated resolution.
The strategic plan lists the following examples of such non-monetary relief:
- Customized training for supervisors and employees
- Development of policies and practices to deter future discrimination
- External monitoring of employer actions
While these have always been in play, we can expect future settlements with the agency to be conditioned on the inclusion of one or more forms of equitable relief.
Another performance measure contained in the plan is increasing the agency’s capacity to conduct investigations of systemic discrimination, which happen when the alleged discrimination “has a broad impact on an industry, profession, company, or geographic area.”
Systemic charges have been a stated priority since 2006, but we have not seen that many systemic charges in Arkansas. The draft plan indicates that more training will be provided to EEOC field staff on recognizing systemic discrimination and more staff will be specifically dedicated to systemic enforcement, so we can reasonably expect to see more systemic charges filed in the next few years. Systemic investigations tend to be far-reaching and costly for the employer to defend.
While the strategic plan tells us a little about where things may be headed, we will learn more about the EEOC’s specific enforcement priorities when it issues its next strategic enforcement plan (SEP). The draft SEP for fiscal 2023-2027 should be released for public comment sometime next year.
There does seem to be a corollary between the priorities set forth in a SEP and the types of charges that are filed and investigated. For example, the SEP for fiscal 2017-2021 (which the EEOC is still operating under) identified “inflexible leave policies” and their impact on disabled workers as an enforcement priority, and we have certainly seen an uptick in those charges in recent years.
Another priority from that SEP was addressing issues concerning “complex employment relationships and structures in the 21st century workplace, focusing specifically on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.” The EEOC and the Department of Labor have both been focused on questions relating to whether individuals classified by companies as contractors are in fact employees for the purposes of federal law.
As the new year begins, employers should consider reviewing their policies and practices to ensure they are compliant with all applicable employment laws. This may help better position your company to defend itself if an EEOC charge is filed by a current or former employee.