Notice2023-00283
Draft Strategic Enforcement Plan
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 10, 2023
Issuing agencies
Equal Employment Opportunity Commission
Abstract
The U.S. Equal Employment Opportunity Commission (EEOC) seeks public comments on a Draft Strategic Enforcement Plan for 2023--2027 as part of its strategic planning process.
Full Text
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<title>Federal Register, Volume 88 Issue 6 (Tuesday, January 10, 2023)</title>
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[Federal Register Volume 88, Number 6 (Tuesday, January 10, 2023)]
[Notices]
[Pages 1379-1385]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00283]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
[EEOC-2022-0006]
Draft Strategic Enforcement Plan
AGENCY: U.S. Equal Employment Opportunity Commission.
ACTION: Request for information and comment.
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SUMMARY: The U.S. Equal Employment Opportunity Commission (EEOC) seeks
public comments on a Draft Strategic Enforcement Plan for 2023--2027 as
part of its strategic planning process.
DATES: Comments must be received by February 9, 2023.
ADDRESSES: Submit comments electronically to the Federal eRulemaking
Portal at: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the instructions for
submitting comments. Do not submit the following information in your
comment: confidential business information, trade secret information,
or other sensitive or protected information that you do not want to be
available to the public. For the Draft Strategic Enforcement Plan,
comments will not be accepted through any other method.
Instructions: All submissions received must include the agency name
(EEOC) and agency docket number (EEOC-2022-0006). The EEOC may post
comments without change, including personal identifiers, contact
information, or other personal information, consistent with the EEOC's
confidentiality and other legal obligations.
Docket: For access to the comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Copies of the received comments also will be
available for review at the Commission's library, 131 M Street NE,
Suite 4NW08R, Washington, DC 20507, between 9:30 a.m. and p.m., from
February 9, 2023 until the Commission publishes the plan in final form.
You must make an appointment with library staff to review the comments
in the Commission's library by contacting the library staff at (202)
921-3119 (voice), 800-669-6820 (TTY), or 1-844-234-5122 (ASL Video
phone).
FOR FURTHER INFORMATION CONTACT: Raymond Windmiller, Executive Officer
at <a href="/cdn-cgi/l/email-protection#512330283c3e3f357f26383f353c383d3d34231134343e327f363e27"><span class="__cf_email__" data-cfemail="a6d4c7dfcbc9c8c288d1cfc8c2cbcfcacac3d4e6c3c3c9c588c1c9d0">[email protected]</span></a> or (202) 921-2705. Requests for this
document in an alternative format should be made to the EEOC's Office
of Communications and Legislative Affairs at (202) 921-3191 (voice), 1-
800-669-6820 (TTY), or 1-844-234-5122 (ASL Video phone).
SUPPLEMENTARY INFORMATION: Please provide any comments to the Draft
Strategic Enforcement Plan as indicated in the ADDRESSES section above.
This Draft Strategic Enforcement Plan follows from the EEOC's Draft
Strategic Plan for 2022-2026 (Agency Docket Number: EEOC-2022-0005).
The EEOC already invited the public to comment on the Draft Strategic
Plan, which concluded on December 5, 2022. Public comments to the Draft
Strategic Plan are available on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Comments
to the Draft Strategic Enforcement Plan will be considered before the
Commission votes to approve a final Strategic Enforcement Plan.
U.S. Equal Employment Opportunity Commission
Draft Strategic Enforcement Plan
Fiscal Years 2023-2027
Executive Summary
The U.S. Equal Employment Opportunity Commission (EEOC) was created
by the landmark Civil Rights Act of 1964 in direct response to calls
for racial and economic justice at the historic March on Washington for
Jobs and Freedom. As the primary federal agency charged by Congress
with enforcing laws against employment discrimination, the EEOC's
mission is to prevent and remedy discrimination and enforce civil
rights in the workplace. EEOC's vision is fair and inclusive workplaces
with equal opportunity for all.
The purpose of the EEOC's Strategic Enforcement Plan is to focus
and coordinate the agency's work over a multiple fiscal year (FY)
period to have a sustained impact in advancing equal employment
opportunity. The agency's first Strategic Enforcement Plan (SEP),
adopted for FY 2013-2016, established subject matter priorities and
strategies to integrate the EEOC's private, public, and federal sector
activities. In adopting the FY 2017-2021 SEP, the Commission reaffirmed
its subject matter priorities with some modifications and additions.
In developing the draft FY 2023-2027 SEP, the EEOC sought input
from the public through a series of listening sessions and a dedicated
email box. At the three public listening sessions, the EEOC heard from
a total of 35 witnesses, including representatives from civil rights
and workers' rights organizations, unions, employer and human resources
representatives, scholars, and attorneys representing plaintiffs and
defendants in employment discrimination matters. The EEOC received
additional public comments through the dedicated email box.
This SEP updates and refines the EEOC's subject matter priorities
to reflect progress in achieving the EEOC's vision of fair and
inclusive workplaces with equal opportunity for all, while also
recognizing the significant challenges that remain in making that
vision a reality. The tragic killing of George Floyd, Breonna Taylor,
and so many other Black and brown people remain a painful reminder of
systemic racism. The COVID-19 pandemic and its economic fallout
continue to disproportionately impact people of color and other
vulnerable workers, exposing and magnifying inequalities in our
society. And high-profile incidents of bias and violence based on race,
religion, national origin, and gender have impacted communities across
the country--including Black grocery shoppers and workers in Buffalo,
NY; Taiwanese churchgoers in Orange County, CA; patrons at an LGBTQI+
club in Colorado Springs, CO; and Jewish synagogue members in
Pittsburgh, PA, among others. While these deep-rooted problems extend
far beyond the workplace, the EEOC is committed to doing our part to
address systemic discrimination in employment. Addressing inequality in
the workplace is a vital step in the fight for justice and equality.
The ability to make a living, support a family, and be respected in the
workplace based on an individual's skills and experience are critical
components of what it means to be human and to enjoy the dignity and
sense of self-worth that every individual deserves.
In implementing the Strategic Enforcement Plan, the Commission
can--and will--do more to combat employment discrimination, promote
inclusive workplaces, and respond to
[[Page 1380]]
the national call for racial and economic justice. Among other changes,
this SEP:
<bullet> Expands the vulnerable and underserved worker priority to
include additional categories of workers who may be unaware of their
rights under equal employment opportunity laws, may be reluctant or
unable to exercise their legally protected rights, or have historically
been underserved by federal employment discrimination protections--such
as people with intellectual and developmental disabilities, individuals
with arrest or conviction records, LGBTQI+ individuals, temporary
workers, older workers, individuals employed in low-wage jobs, and
persons with limited literacy or English proficiency;
<bullet> Refines the recruitment and hiring priority to include
limiting access to on-the-job training, pre-apprenticeship or
apprenticeship programs, temp-to-hire positions, internships, or other
job training or advancement opportunities based on protected status;
<bullet> Recognizes employers' increasing use of automated systems,
including artificial intelligence or machine learning, to target job
advertisements, recruit applicants, and make or assist in hiring
decisions;
<bullet> Updates the emerging and developing issues priority to
include employment discrimination associated with (1) the COVID-19
pandemic and other threats to public health, (2) violations of the
newly enacted Pregnant Workers Fairness Act of 2022, and (3)
technology-related employment discrimination; and
<bullet> Preserves access to the legal system by focusing on overly
broad waivers, releases, non-disclosure agreements, or non-
disparagement agreements.
The Strategic Enforcement Plan will help guide the EEOC's work
through all of the agency's activities, including outreach, public
education, technical assistance, enforcement and litigation. Through
its effective implementation, the agency will continue to advance in
the nation's workplaces America's foundational goals of equality and
justice for all.
I. Guiding Principles of the Strategic Enforcement Plan
In developing the draft Fiscal Year 2023-2027 Strategic Enforcement
Plan (SEP), the Commission relied on three guiding principles, adapted
from the principles underlying the prior two SEPs:
A. A Targeted Approach--Focus on Priorities To Maximize the EEOC's
Strategic Impact
The EEOC will take a targeted approach to enforcement. A targeted
approach empowers Commission staff throughout the agency to direct
attention and resources to the specific priorities identified in this
SEP, with the goal of positively influencing employer practices and
promoting legal compliance. Targeted enforcement will enhance the
Commission's ability to prevent and eliminate unlawful employment
practices, develop and clarify the law, and advance its mission and the
public interest. A targeted approach includes proactive efforts to
address SEP priority issues, including using Commissioner Charges and
directed investigations.
B. An Integrated Approach--Collaboration, Coordination and Consistency
The EEOC will also ensure that its enforcement is integrated across
the agency. An integrated approach means that the EEOC operates as one
national law enforcement agency, while also appropriately reflecting
local or regional differences. This requires collaboration,
coordination and communication between offices, staff, and program
areas across the Commission, as well as consistent procedures in
public-facing activities throughout the country. An integrated approach
means that communications, outreach, education, training, research, and
technology enhance and complement administrative and legal enforcement,
policy development, and federal sector hearings, appeals, and oversight
to advance the agency's mission. An integrated approach also recognizes
that, where appropriate, enforcement in the private, public, and
federal sectors should be coordinated and consistent.
Further, an integrated approach acknowledges that enforcing
workplace civil rights is a shared responsibility that extends beyond
the EEOC. For example, the Department of Justice, Department of Labor,
Fair Employment Practices Agencies (FEPAs), Tribal Employment Rights
Offices (TEROs), and the private bar all play vital roles in preventing
and remedying employment discrimination. As a result, it is important
that the EEOC continue to collaborate with these entities, and
coordinate across the federal government, to advance our shared
missions and expand outreach to jobseekers, workers, and employers.
This SEP reaffirms that collaboration, coordination, and sharing of
information within the EEOC and with our federal, state, local, and
Tribal partners assists the Commission in operating strategically.
C. Accountability and Delivery of Results--Taking Ownership To Achieve
Results and Serve the Public Given Existing Resources
As the primary federal agency entrusted by Congress with enforcing
the nation's workplace discrimination laws, the EEOC is accountable to
the public it serves to ensure its resources are used strategically and
effectively to enforce the law and serve those most in need of its
assistance. Accountability means taking ownership to achieve results
and deliver timely, consistent, and high-quality service to the public
given available resources.
II. Principle One: A Targeted Approach To Strengthen Strategic
Enforcement
A. Focus on Strategic Impact To Leverage EEOC Resources Most
Effectively
To maximize the EEOC's effectiveness as a national law enforcement
agency, the Commission must focus on those activities that have the
greatest strategic impact. The Commission defines strategic impact as a
significant effect on the development of the law or on promoting
compliance across a large organization, geographic region, or industry.
Relevant factors in determining strategic impact include, among others,
the significance of a particular issue, the potential outcome, the
number of individuals or employers affected, and the opportunity to
prevent or deter future violations and to have broad and lasting impact
in advancing equal employment opportunity.
Systemic investigations, resolutions, and lawsuits typically have
strategic impact because they involve ``pattern or practice, policy
and/or class cases where the discrimination has a broad impact on an
industry, profession, company, or geographic location.'' The Commission
reaffirms its commitment to a nationwide, strategic, and coordinated
systemic program as one of the EEOC's top priorities. The Commission
also recognizes that an individual charge or case can have strategic
impact, as defined above. Effective strategic enforcement includes a
balance of individual and systemic cases, and of national and local
issues, recognizing that each may have strategic impact in different
and complementary ways.
The Commission's identification of subject matter priorities under
this SEP recognizes that focused and collective
[[Page 1381]]
work on these areas will also have strategic impact. In addition, the
Commission will continue to pursue matters and issues that are not
identified as SEP priorities where EEOC enforcement will have a
strategic impact in advancing equal employment opportunity.
B. Subject Matter Priorities for Fiscal Years 2023-2027
The Commission's goal in identifying agency-wide subject matter
priorities is to ensure that the agency's resources are targeted to
prevent and remedy discrimination and advance equal employment
opportunity in circumstances where EEOC enforcement is most likely to
achieve strategic impact. The EEOC will use all its tools, including
enforcement, education and outreach, research, and policy development,
to advance the agency's priorities.
The Commission relied on the following criteria to identify subject
matter priorities for this SEP:
1. Issues that will have broad impact because of the nature and
scope of the employment practices addressed, the number of individuals
impacted, or the employers or industries affected;
2. Issues affecting workers who may be unaware of their legal
rights or reluctant or unable to exercise their rights;
3. Issues involving developing areas of the law, where the
Commission's expertise is particularly valuable;
4. Issues involving policies or practices that impede or impair
full enforcement of federal employment discrimination laws; and
5. Issues that may be best addressed by government action,
including enforcement, based on the nature of the claim, the types of
relief available, practical or legal impediments to private
enforcement, or the Commission's access to information, data, and
research.
C. Subject Matter Priorities
The following are the EEOC's subject matter priorities for Fiscal
Years 2023-2027:
1. Eliminating Barriers in Recruitment and Hiring
The EEOC will focus on recruitment and hiring practices and
policies that discriminate against racial, ethnic, and religious
groups, older workers, women, pregnant workers and those with
pregnancy-related medical conditions, LGBTQI+ individuals, and people
with disabilities. These include:
<bullet> the use of automated systems, including artificial
intelligence or machine learning, to target job advertisements, recruit
applicants, or make or assist in hiring decisions where such systems
intentionally exclude or adversely impact protected groups;
<bullet> job advertisements that exclude or discourage certain
demographic groups from applying;
<bullet> the channeling, steering or segregation of individuals
into specific jobs or job duties due to their membership in a protected
group;
<bullet> limiting access to on-the-job training, pre-apprenticeship
or apprenticeship programs, temp-to-hire positions, internships, or
other job training or advancement opportunities based on protected
status;
<bullet> limiting employees exclusively to temporary work on a
basis prohibited by federal employment laws when permanent positions
are available for which they are qualified;
<bullet> restrictive application processes or systems, including
online systems that are difficult for individuals with disabilities or
other protected groups to access; and
<bullet> screening tools or requirements that disproportionately
impact workers based on their protected status, including those
facilitated by artificial intelligence or other automated systems, pre-
employment tests, and background checks.
The lack of diversity in certain industries and workplaces (such as
construction and high tech, among others), especially in growth
industries and industries that benefit from substantial federal
investment, are also areas of particular concern. Although this
priority typically involves systemic cases, a claim by an individual or
small group may qualify if it raises a policy, practice, or pattern of
discrimination.
2. Protecting Vulnerable Workers and Persons From Underserved
Communities From Employment Discrimination
The EEOC will focus on harassment, retaliation, job segregation,
labor trafficking, discriminatory pay, disparate working conditions,
and other policies and practices that impact particularly vulnerable
workers and persons from underserved communities. With respect to
employment discrimination, the Commission views the category of
vulnerable workers as including:
<bullet> immigrant and migrant workers;
<bullet> people with developmental or intellectual disabilities;
<bullet> individuals with arrest or conviction records;
<bullet> LGBTQI+ individuals;
<bullet> temporary workers;
<bullet> older workers;
<bullet> individuals employed in low wage jobs, particularly teen-
aged workers employed in such jobs;
<bullet> Native Americans/Alaska Natives; and
<bullet> persons with limited literacy or English proficiency.
These workers may be unaware of their rights under equal employment
opportunity laws, may be reluctant or unable to exercise their legally
protected rights, and/or have historically been underserved by federal
employment discrimination protections. Factors such as their
immigration status, language barriers, education level, poverty and/or
economic circumstances, geographic location, isolated work conditions,
age, disability status, societal stigma, or lack of employment
experience can make these workers particularly vulnerable to
discriminatory practices or policies.
To implement this priority, district offices and the agency's
federal sector program will identify vulnerable workers and underserved
communities in their districts or within the federal sector for focused
attention, based on their assessment of how the EEOC can most
effectively utilize its resources to address issues of concern for
these groups. For example, employment discrimination against Native
Americans/Alaska Natives, indigenous people from Latin America,
agricultural workers, or individuals with arrest or conviction records
might be areas of focus as part of this priority.
3. Addressing Selected Emerging and Developing Issues
The EEOC will continue to prioritize issues that may be emerging or
developing, including issues that involve new or developing legal
concepts or topics that are difficult or complex. The agency is
uniquely suited to address these issues given the EEOC's research, data
collection, receipt of charges in the private and public sectors,
adjudication of complaints and oversight in the federal sector, and
ongoing engagement with stakeholders.
Because of the nature of this priority category, the Commission may
add or remove issues through interim amendments to the SEP. The
following issues currently fall within this category:
(a) Qualification standards and inflexible policies or practices
that discriminate against individuals with disabilities;
(b) Protecting individuals affected by pregnancy, childbirth, and
related medical conditions under the Pregnancy Discrimination Act (PDA)
as well as pregnancy-related disabilities under the
[[Page 1382]]
Americans with Disabilities Act (ADA) and enforcing the provisions of
the newly enacted Pregnant Workers Fairness Act, which requires
employers to make reasonable accommodations for those affected by
pregnancy, childbirth, and related medical conditions;
(c) Addressing discrimination influenced by or arising as backlash
in response to local, national or global events.
Current potentially affected individuals or groups include African
Americans, individuals of Arab, Middle Eastern, or Asian descent, Jews,
Muslims, and Sikhs. Discriminatory bias that falls under this
subcategory may also arise as a result of recurring historical
prejudices. The discriminatory practices or affected groups or
individuals may change during the time period covered by this SEP;
(d) Employment discrimination associated with the COVID-19 pandemic
and other threats to public health.
The EEOC hopes that discrimination directly associated with COVID-
19 will continue to decline as the nation recovers from the pandemic.
Nonetheless, given reports of significant pandemic-related stereotyping
and discrimination targeting certain groups--including persons of Asian
descent, older workers, and persons with disabilities--the EEOC will
continue to be alert to discriminatory practices associated with the
COVID-19 pandemic and other threats to public health, such as:
<bullet> pandemic-related harassment based on race, national
origin, religion, disability, age, gender, or other protected
characteristics;
<bullet> unlawful denials of accommodations to individuals with
disabilities or individuals with sincerely held religious beliefs,
practices, or observances;
<bullet> unlawful medical inquiries, improper direct threat
determinations, or other discrimination related to disabilities that
arose during or were exacerbated by the pandemic;
<bullet> discrimination against persons who have an actual
disability or are regarded as having a disability related to COVID-19,
including individuals with long COVID, and pandemic-related caregiver
discrimination based on a protected characteristic.
(e) Technology-related employment discrimination.
The EEOC will focus on employment decisions, practices, or policies
in which covered entities' use of technology contributes to
discrimination based on a protected characteristic. These may include,
for example, the use of software that incorporates algorithmic
decision-making or machine learning, including artificial intelligence;
use of automated recruitment, selection, or production and performance
management tools; or other existing or emerging technological tools
used in employment decisions.
4. Advancing Equal Pay for All Workers
The EEOC will continue to focus on combatting pay discrimination in
all its forms--on the basis of sex under the Equal Pay Act and Title
VII, on other protected bases covered by federal anti-discrimination
laws, including race, national origin, disability, and age, and at the
intersection of protected bases. Because many workers do not know how
their pay compares to their coworkers' and, therefore, are less likely
to discover and report pay discrimination, the Commission will continue
to use directed investigations and Commissioner Charges, as
appropriate, to facilitate enforcement.
The Commission will also focus on employer practices that may
impede equal pay or contribute to pay disparities and may lead to
violations of statutes the Commission enforces, such as pay secrecy
policies, retaliating against workers for asking about pay or sharing
their pay with coworkers, reliance on past salary history to set pay,
or requiring applicants to specify their desired or expected salary at
the application stage.
5. Preserving Access to the Legal System
The EEOC will focus on policies and practices that limit
substantive rights, discourage or prohibit individuals from exercising
their rights under employment discrimination statutes, or impede the
EEOC's investigative or enforcement efforts. For example, this priority
includes policies or practices that deter or prohibit filing charges
with the EEOC or cooperating freely in EEOC investigations or
litigation. Specifically, the EEOC will focus on:
(a) overly broad waivers, releases, non-disclosure agreements, or
non-disparagement agreements;
(b) unlawful, unenforceable, or otherwise improper mandatory
arbitration provisions;
(c) employers' failure to keep applicant and employee data and
records required by statute or EEOC regulations; and
(d) retaliatory practices that could dissuade employees from
exercising their rights under employment discrimination laws. This
subcategory focuses on retaliatory practices that detrimentally impact
or otherwise affect employees beyond those engaging in protected
activity. For example, this subcategory includes taking unwarranted
adverse actions against individuals who other employees are aware have
filed discrimination charges or complaints, or against individuals who
have openly opposed discriminatory employment practices.
6. Preventing and Remedying Systemic Harassment
Harassment remains a serious workplace problem. Over 34 percent of
the charges of employment discrimination the EEOC received between FY
2017 and FY 2021 included an allegation of harassment. The EEOC will
continue to focus on combatting systemic harassment in all forms and on
all bases--including sexual harassment and harassment based on race,
disability, age, national origin, religion, color, sex (including
pregnancy, gender identity, and sexual orientation) or a combination or
intersection of any of these. A claim by an individual or small group
may fall within this priority if it is related to a widespread pattern
or practice of harassment. To combat this persistent problem, the EEOC
will continue to focus on strong enforcement with appropriate monetary
relief and targeted equitable relief to prevent future harassment. The
EEOC will also focus on promoting comprehensive anti-harassment
programs and practices, including training tailored to the employer's
workplace and workforce, using all available agency tools, including
outreach, education, technical assistance, and policy guidance.
D. District and Federal Sector-Specific Priorities
The subject matter priorities set forth in the SEP are intended to
be broad enough to encompass the needs and priorities of the EEOC's
field offices across the country and the federal sector. Nevertheless,
District Offices and the Office of Federal Operations may designate
additional subject matter priorities for focused attention as needed to
address unique or local issues.
E. Implementing SEP Priorities
To maximize the agency's effectiveness, the EEOC's resources must
align with its priorities. The following guidelines are intended to
ensure that cases and matters that advance the SEP subject matter
priorities, as well as other charges and cases that have strategic
impact, receive the attention and resources needed to advance equal
opportunity and enforce civil rights in the workplace.
[[Page 1383]]
The EEOC will use SEP priorities to inform charge prioritization,
selection of litigation and amicus briefs, federal sector enforcement,
and all other activities across the agency including guidance,
outreach, and research. The agency will also continue to pursue matters
and issues that are not identified as SEP priorities where EEOC
enforcement will have a strategic impact.
1. Charge Prioritization
Since at least 1995, the Commission has categorized charges for
priority handling based on the likelihood of an investigation resulting
in a finding of reasonable cause to believe that discrimination has
occurred. Charge prioritization is a continuous process that occurs
throughout the life of a charge; in each case, the investigation should
be appropriate to the charge, taking into account the EEOC's resources.
Because the demand for the EEOC's services still far exceeds the
agency's resources, the Commission must continue to strategically
leverage its finite resources to best serve the public and most
effectively achieve the goals of the statutes it is charged with
enforcing. Clearly defined priorities enable the EEOC to focus
resources where government enforcement is most needed and can deliver
the greatest impact. Accordingly, a potentially meritorious charge that
raises an SEP priority or is likely to have strategic impact should
receive priority in charge handling.
2. Litigation Program
The EEOC's litigation program is a critical tool in the agency's
efforts to prevent and remedy unlawful employment discrimination and
enforce civil rights in the workplace. In developing and selecting
cases for litigation, the Office of General Counsel should prioritize
meritorious cases that raise SEP priorities or are otherwise likely to
have strategic impact. SEP priorities should also be considered in
selecting cases for amicus curiae participation.
The Commission encourages the General Counsel, District Directors,
and Regional Attorneys to continue to collaborate with the private bar,
industry liaison groups, non-profit organizations, the Department of
Justice, the Office of Federal Contract Compliance Programs, and other
federal, state, and local partners to ensure efficient coordination and
support their critical roles in protecting civil rights and ensuring
compliance with employment discrimination laws.
3. Systemic Program
Eradicating systemic discrimination has long been one of the EEOC's
top priorities, as underscored in the Systemic Task Force
Recommendations of 2006, and reaffirmed in EEOC's 2016 review of the
Systemic Program, ``Advancing Opportunity--A Review of the Systemic
Program of the U.S. Equal Employment Opportunity Commission,'' and in
each of the EEOC's prior Strategic Enforcement Plans. The Commission
once again reaffirms its commitment to the agency's systemic program as
fundamental to advancing the agency's mission to prevent and remedy
discrimination in our nation's workplaces. The agency will use the SEP
priorities to guide the types of systemic investigations and cases to
be pursued by the Commission at the national and local levels.
Meritorious systemic charges and cases that raise SEP priorities should
be given precedence over other cases to maximize the EEOC's strategic
impact.
4. Alternative Dispute Resolution Program
As the Strategic Enforcement Plan focuses resources on SEP
priorities, Alternative Dispute Resolution (ADR) continues to be an
important tool to provide service to the public and promote timely
resolution of discrimination charges against private, state, and local
employers as well as complaints in the federal sector. The EEOC's ADR
program provides an opportunity for individuals filing charges or
complaints of discrimination and employers to convene and discuss their
respective positions with a neutral mediator. Successful mediations
resolve charges and complaints early in the process, benefiting both
workers and employers and conserving agency resources. The Commission
encourages ADR as an effective and efficient tool to resolve charges
and complaints of discrimination.
5. Federal Sector Hearings, Appeals, Oversight and Outreach
The SEP priorities serve several purposes in the federal sector.
First, cases that raise these priorities alert the Commission to the
potential need for more extensive legal analysis in federal sector
appellate decisions, which also could serve as persuasive authority on
related issues in the federal courts. Second, EEOC's federal sector
program is responsible for outreach and training to support oversight
of federal agency EEO programs. Third, identifying SEP priorities in
hearings and appeals provides the EEOC with information about trends in
legal or factual issues to support federal sector outreach, training,
compliance reviews, and program evaluations.
F. Other Priorities
Chair initiatives should complement, rather than replace, SEP
priorities.
III. Principle Two: Integrating Efforts Across EEOC
As noted above, the Commission is committed to an integrated
approach at the agency that promotes collaboration, coordination, and
sharing of information throughout the agency, beginning with the
following requirements:
A. Integrating Administrative Enforcement and Legal Enforcement in the
Public and Private Sectors
The Commission has a statutory responsibility to receive,
investigate, and attempt to resolve charges of discrimination filed
against private sector and state and local employers. If the Commission
determines there is reasonable cause to believe discrimination has
occurred, the agency attempts to end the alleged unlawful practice
through an informal and confidential process known as conciliation. If
conciliation is unsuccessful, the Commission has the authority to sue
private entities under Title VII, Title I of the ADA, and Title II of
GINA. (The Department of Justice has public sector litigation authority
under these statutes). The EEOC has the authority to sue both public
and private entities under the Equal Pay Act and the ADEA.
Having a seamless, integrated effort between the enforcement unit
staff who investigate and conciliate discrimination charges and the
legal staff who litigate cases on behalf of the Commission is critical
for the agency's work to have significant impact and to provide
excellent service to the public. To establish a baseline of consistency
across all offices, the SEP requires:
1. Legal-Enforcement Interaction
The Commission reaffirms the importance of regular and meaningful
consultation and collaboration between investigative and legal staff
throughout investigations and conciliations. Effective administrative
and court enforcement of workplace civil rights laws requires that the
EEOC's investigative and legal staff communicate and work together to
best achieve the EEOC's mission.
The Commission commends the interaction between administrative and
legal enforcement that exists in many
[[Page 1384]]
offices and encourages headquarters and field office legal and
investigative staff to continue to enhance this important
collaboration. The Commission also encourages field offices across the
country to collaborate to advance the development of the law and
develop systemic cases.
2. Coordination of Systemic Enforcement
Effective systemic enforcement requires communication and
collaboration between the EEOC's legal and enforcement units, between
headquarters and the field, and across EEOC districts. The Commission
encourages cross-district and agency-wide collaboration, consultation,
and strategic partnerships to avoid duplicating efforts, promote
efficiency, and maximize the impact of the EEOC's systemic program.
B. Integrating Federal Sector Activities
The goal of advancing equal opportunity applies in the federal and
private sectors, as does the principle of integrated strategies. The
Commission encourages the Office of Federal Operations and the Office
of Field Programs to continue enhanced communication and coordination
within the federal sector. The EEOC's federal sector activities
includes its hearings program; appellate program; oversight; and
education, training, and outreach programs. It is critical that the
Commission leverage its authority and integrate its activities in the
federal sector to help federal agencies achieve and maintain ``Model
EEO Program'' status, as mandated by Congress.
C. Integrating Education and Outreach Activities
Clear and accessible information is critical to preventing
discrimination, promoting compliance with federal EEO laws, and
informing individuals of their rights. Investigations, conciliations,
and litigation are only some of the means that the EEOC uses to fulfill
its mission and vision. Education and outreach programs, as well as
regulations, guidance, and training materials, are also cost-effective
law enforcement tools because they promote understanding of the law and
voluntary compliance. To ensure the public has easy access to
information and technical assistance from the EEOC and that the agency
is fully integrating the SEP priorities into its education and outreach
efforts, the Commission adopts the following strategies:
<bullet> Providing up-to-date, accessible guidance on the requirements
of employment discrimination laws
The EEOC's Strategic Plan recognizes the importance of preventing
employment discrimination and advancing equal employment opportunity
through outreach and education. In furtherance of this important
objective, the EEOC is focused on efforts to ensure that members of the
public are aware of employment discrimination laws, know their rights
and responsibilities under these laws, and have access to the EEOC's
services, and that employers, federal agencies, unions, and staffing
agencies have the information and resources to advance equal employment
opportunity, prevent discrimination, and effectively resolve EEO
issues. The EEOC is focused on developing and updating its regulations,
guidance, training materials, and other information it provides to the
public to ensure that applicants, employees, employers, and members of
the public are aware of their rights and responsibilities.
To fully integrate education and outreach activities with the
EEOC's SEP priorities, the agency commits to leveraging technology,
analytics, and innovative outreach strategies to provide the public,
including hard to reach communities and those who lack ready access to
EEOC resources, greater access to information about their rights and
responsibilities.
By using these additional resources, the agency will be better
equipped to ensure that information and training provided to the public
advances the agency's priorities.
<bullet> Promoting promising practices to help prevent discrimination
in the workplace
The Commission commits to integrating the SEP priorities into its
education and outreach activities by promoting promising practices for
employers to help prevent discrimination from occurring. These
resources and leading practices will enable all employers to adopt
policies and practices to help prevent employment discrimination and
advance equal employment opportunity.
D. Integrating Research, Data, and Analytics
Collecting and analyzing data is central to the EEOC's enforcement
and educational efforts. The EEOC recognizes the importance of data
driven decision-making and the transformative role data can have to
make the EEOC more effective in advancing its priorities and serving
the public. Since 2018, the Commission has made significant investments
in upgrading its ability to collect and use quality data. Notably, the
agency created the Office of Enterprise Data and Analytics (OEDA) to
promote the use of modern data analytics to facilitate data driven
decision-making, including for the purpose of preventing, identifying,
investigating, and correcting unlawful employment practices. The EEOC
will continue to build its capacity to provide mission-critical
evidence and better integrate its information and data policy into the
agency's SEP priorities.
E. Collaborating With State and Local Fair Employment Practices
Agencies and Tribal Employment Rights Offices
State and local Fair Employment Practices Agencies (FEPAs) and
Tribal Employment Rights Offices (TEROs) are critical partners in the
EEOC's enforcement of equal employment opportunity laws. The EEOC
contracts with FEPAs nationwide to process about 40,000 employment
discrimination charges each year. Through a dual-filing process made
possible by work-sharing agreements, the agencies avoid duplicating
work and make it easier for the public to file charges of
discrimination. The EEOC and FEPAs also collaborate in various
activities, including investigations, internal training, and outreach
events. Similarly, the EEOC contracts with some TEROs who assist the
agency in reaching and providing information about non-discrimination
laws to tribal and non-tribal members and non-tribal employers
operating on or near tribal lands. The TEROs also collaborate with the
EEOC by completing interview questionnaire forms for potential charging
parties and forwarding them to EEOC field offices.
The EEOC District Offices, FEPAs and TEROs will continue to
identify areas for collaboration based on the SEP priorities and the
needs in their specific jurisdictions to benefit the public. These
areas of collaboration may include, but are not limited to, outreach
events and listening sessions with stakeholders to discuss SEP
priorities. The district offices will review the effectiveness of the
joint activities on an annual basis and adjust as needed.
F. Supporting Private Enforcement of the Federal Anti-Discrimination
Laws
The Commission has an obligation to ensure meaningful legal
protections for individuals while also effectively using its resources
to have the greatest impact. Given its limited resources, the EEOC
litigates only a small percentage of reasonable cause findings where
conciliation efforts have failed. EEOC staff may share with the
parties, to the
[[Page 1385]]
extent permitted under the law and as appropriate, information to
facilitate swift enforcement and early resolution of charges. To better
assist individuals whose charges are not settled or litigated by the
EEOC, district offices will provide information to individuals who seek
to contact employment law attorneys for further assistance.
G. Collaborating With Other Federal Agencies
The EEOC is the government's lead agency on equal employment
opportunity. However, as previously noted, the Department of Justice,
the Department of Labor, and other federal agencies also play important
roles in enforcing laws prohibiting employment discrimination. The
Commission will continue to collaborate with our sister agencies to
further our mission.
IV. Principle Three: Delivery of Results
To ensure that the EEOC is achieving results in accordance with the
priorities set forth in the SEP, program offices will report progress
to the Commission at semi-annual briefings as follows:
<bullet> The Office of Field Programs will report on enforcement
activities and outreach, education, and training involving SEP
priorities.
<bullet> The Office of General Counsel will report on litigation
involving SEP priorities.
<bullet> The Office of Federal Operations will report on federal
sector activities implicating SEP priorities.
The midyear briefing will cover the first and second quarters of
the fiscal year, and the annual briefing will cover all four quarters.
Effective Date
The SEP is effective the day following approval by the Commission
and will remain in effect until superseded, modified or withdrawn by
vote of a majority of members of the Commission.
Acknowledgements
The Commission extends its thanks to everyone who participated in
the development of the draft SEP, especially the members of the EEOC
Strategic Planning Work Group and the SEP Subgroup. The Commission also
thanks the EEOC staff who provided feedback on the SEP, the nearly
three dozen witnesses who addressed the Commission at the three public
listening sessions, and members of the public who submitted comments on
the SEP through the dedicated inbox.
Brett A. Brenner,
Acting Deputy Chief Operating Officer, Equal Employment Opportunity
Commission.
[FR Doc. 2023-00283 Filed 1-9-23; 8:45 am]
BILLING CODE 6570-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.