“Know thy adversary” is a simple and common concept in sports, litigation or battle. The more you know about the other side, the better suited you will be to counter hostile tactics and emerge to fight another day. But who is the opponent for diversity leaders?
The Equal Employment Opportunity Commission (EEOC) — and the myriad of companion state and local EEO agencies — has a laudable goal to wipe out workplace discrimination. This goal is no doubt shared by each reader of this article. So with this unity in purpose, where is the problem?
The problem is how the EEOC has chosen to accomplish its goal of equal employment opportunity.
More often than not, it pushes its agenda by making public examples of those employers it views as not meeting its diversity expectations. Costly and high-profile class litigation awaits the unwary; a visit to the EEOC’s newsroom at www.eeoc.gov gives chilling examples of just how badly these cases can go. Knowing the EEOC’s hot topics is critical for diversity executives seeking to inoculate themselves against costly litigation.
For the next few installments of this column, I will walk through the EEOC’s stated goals and hot topics, with suggestions to address those issues. Fortunately for the diversity executive, the EEOC is vocal about its stated goals. Last year, the commission crafted, revised and distributed various drafts of its 2012-2016 Strategic Enforcement Plan — its playbook for litigation during the next four years. The plan is not yet final, and the organization continues to tweak its language, but it is largely complete in substance. Between this plan and the EEOC’s historical litigation trends, we can discern what practices and issues will make an employer a target.
Here are the key commission priorities we will address in upcoming issues:
Eliminating systemic barriers in recruitment and hiring. With increasing frequency, the EEOC has focused its efforts to expand the scope and profile of large-scale systemic litigation. Its draft plan crystallized that the commission will continue to target class-based hiring discrimination with a focus on policies that channel individuals into jobs due to their status in a particular group.
Protecting immigrant, migrant and other vulnerable workers. The plan notes that it will target disparate pay, job segregation, harassment, trafficking and discriminatory language policies affecting employees. Diversity executives should be mindful of this goal, as the government has filed numerous class-like cases in the past six months targeting precisely these vulnerable populations.
Addressing emerging issues. The EEOC has shrewdly focused on pushing the edge of the envelope when it comes to application of the laws it enforces. For example, it has vowed to attack discrimination against lesbian, gay, bisexual and transgender individuals by wrapping these claims in Title VII’s sex discrimination provisions. These claims could snare employers unaware that the commission is hunting for these cases. In short, if the EEOC views a topic as likely to gain public sympathy and settlement dollars, it may fit within its commitment to address emerging issues.
Preserving access to the legal system. The EEOC’s draft plan notes that it will continue to focus on retaliation against employees who exercise their rights under employment discrimination statutes. The plan also suggests that using releases and other such legal tools as a way of dissuading employees from filing a charge of discrimination will place an employer squarely within its crosshairs.
Combating harassment. The EEOC has recently litigated harassment cases with renewed ferocity, especially when these issues juxtapose with vulnerable populations.
The draft plan mixes the old with the new. Employers can expect that the EEOC will continue to make good on its promise to litigate large-scale, high-impact and high-profile investigations and cases, and simultaneously focus on other types of individual discrimination. In coming issues, we will take a closer look at each of the EEOC’s hot topics, exploring what this means for diversity executives and discussing ways to make their companies less attractive targets for a government agency that is on the hunt.
Rebecca P. Bromet is a partner at law firm Seyfarth Shaw. She can be reached at firstname.lastname@example.org.