By Christopher DeGroff, Andy Scroggins, and Sarah Bauman
Seyfarth Synopsis: On Friday, November 4, the EEOC released its draft 2022-2026 Strategic Plan (available here)—a blueprint of its proposed enforcement plan for the upcoming years. The Plan focuses on strategic objectives accompanied by targeted goals and performance measures. Though each four-year plan differs to some extent, the EEOC’s vision of “justice and quality in the workplace” and mission to “stop and remedy unlawful employment discrimination” remains unchanged. This Strategic Plan is a must-read for employers and their attorneys, as it sheds light on the EEOC’s focus over the next four years for achieving its overall mission.
Strategic Plan: FY 2022-2026
Every four years, the EEOC is required to publish these plans which serve as a framework for the EEOC in achieving its mission to combat employment discrimination. Through the Strategic Plan, the EEOC identifies three Strategic Goals, which build on those set out in the prior plan.
The Strategic Plan is not to be confused with the Strategic Enforcement Plan, or the “SEP.” The SEP is the “what”—i.e., what priorities the EEOC will focus on—while the Strategic Plan is the “how.” The term of the last SEP expired at the end of Fiscal Year 2021, but it remains in effect until modified or withdrawn. The EEOC has announced its intention to update and release a new SEP sometime in Fiscal Year 2023.
Strategic Goal 1: Enforcement Authority For Preventing And Remedying Discrimination
The EEOC’s first Strategic Goal is to combat employment discrimination through the strategic application of EEOC’s law enforcement authorities. This goal is comprised of two key objectives: (1) having a broad impact on preventing and remedying employment discrimination while providing meaningful relief for victims of discrimination; and (2) exercising enforcement authority fairly, efficiently, and based on the circumstances of each charge or complaint. The EEOC will focus on strengthening the capacity of the Agency in the private, public, and federal sectors.
Indeed, in the last three years, the EEOC reported an average of 67,000 private sector charges of discrimination, 8,300 requests for federal sector hearings, and 4,300 requests for federal sector appeals—an uptick from the last four-year period for the federal sector hearing and federal sector appeal requests. Given the large number of charges and federal sector requests for hearings and appeals, the EEOC notes it must “think strategically about how to target its resources to ensure the strongest impact possible.” The EEOC highlights a number of strategies for carrying out that goal, such as rigorously and consistently implementing the SEP to focus resources on EEOC priorities, and using administrative and litigation mechanisms to identify and eradicate discriminatory policies and practices. Additional information on these strategies appear on page 15 of the proposed plan.
Some insight into the Agency’s thinking, and potential impact for employers, can be obtained by looking at the performance measures that EEOC has set. (A summary table appears on the last page of the proposed plan.) For example, the EEOC aims to obtain targeted equitable relief in 90% of all conciliation and litigation resolutions by the final year of the plan. It also aims to resolve at least 90% of its enforcement lawsuits annually. The combination of these two measures suggests that employers must expect to provide some monetary relief to end disputes with the EEOC, but the EEOC also may feel some pressure to be reasonable in its demands in order to close enough of its files each year. That pressure may be particularly acute as each fiscal year draws to a close.
The EEOC also intends to measure its performance as a function of its capacity to conduct systemic discrimination investigations. This includes training more field staff to identify and investigate such claims, and to have staff members in each District who are dedicated to conducting systemic discrimination investigations. This suggests that employers can anticipate more systemic investigations to be opened, and for those investigations to be conducted more rigorously.
The EEOC intends to step up its efforts to monitor compliance with the conciliation agreements it has entered with employers. Employers who thought that conciliation agreements might bring some peace after an investigation may now face greater burdens in demonstrating their adherence to the terms of those documents.
In addition, the EEOC continues to look at streamlining and improving its charge intake, including providing more availability for intake interviews and taking advantage of technological tools. Removing barriers to filing charges could lead to an increase in charge activity.
Strategic Goal 2: Education And Outreach
The EEOC’s second Strategic Goal is to prevent employment discrimination and advance equal employment opportunities through education and outreach, comprised of two main objectives: (1) public awareness of employment discrimination laws and rights and responsibilities under such laws; and (2) availability of information and guidance to employers, federal agencies, unions, and staffing agencies necessary for advancing EEO, preventing discrimination, and effectively resolving EEO issues.
Traditionally, the EEOC’s outreach programs were implemented through free education activities and training and, to a lesser extent, fee-based training through the EEOC’s Training Institute. The EEOC now commits to increasing its use of technology and expanding the EEOC’s social media presence to reach the agency’s varied and wide-ranging audiences. The EEOC will continue to enhance its use of social media to promote its education and outreach activities and to encourage greater use of its website. The EEOC’s website provides critical education materials, including information on the laws the agency enforces, the private sector charge and federal sector processes, data, and research.
Strategic Goal 3: Organizational Excellence
The EEOC’s third Strategic Goal is to strive for organizational excellence through the agency’s people, practices, and technology. This Strategic Goal is operational in nature with an objective of improving management functions with a focus on people and service to the public, among others. There are two primary objectives, including: (1) achieving a culture of accountability, inclusivity, and accessibility; and (2) aligning resources with priorities to strengthen intake, outreach, education, enforcement, and service to the public to protect and advance civil rights in the workplace. This Strategic Goal functions to ensure that the other two Strategic Goals can be carried out effectively, as the EEOC must ensure excellence in its staff and the services it provides.
For example, recruiting and retention is a main highlight of this Strategic Goal as well as advance performance management and diversity and inclusion within its own workplace. After all, how can the EEOC monitor the quality and justice of America’s workplaces if it does not keep its own offices in check? To that end, the Strategic Plan identifies how large-scale industry layoffs or other changes such as the COVID-19 pandemic could trigger a straining of staff capacity to timely resolve an inevitable influx of anticipated charges for the coming years. Further, the EEOC reports that population shifts may result in increased charge receipts at some field offices, but budget constraints may not allow for the hiring of additional staff.
Here, too, the performance measures offer some clues about how employers may be impacted. Not surprisingly, the EEOC aims to be fully-staffed—to increase the number of employees involved in enforcement and to train those who are in “mission-critical” roles, including EEO Investigators, EEO Specialists, and Trial Attorneys. Employers can expect that larger numbers of investigators and attorneys, with better training, will lead to an increased number of investigations and lawsuits to be conducted in more depth.
Implications For Employers
The EEOC’s Strategic Plan demonstrates yet again that the Commission is keenly focused on identifying and pursuing systemic discrimination claims with more robust tools and strategies. The EEOC’s four-year plan also makes clear that the Commission will expand its efforts to reach currently underserved populations through a more technological approach. At the same time, the EEOC also intends to harness its collective resources to identify, investigate, and litigate large discrimination claims, which it sees as the best use of its litigation budget. The Plan is still a draft, and the EEOC is accepting comments through December 5, 2022. We will report on the final version once it is available. Also stay tuned for our analysis of the EEOC’s SEP, which promises to identify the key substantive focus areas for the coming years.