On September 4, 2012, the EEOC released its Draft Strategic Enforcement Plan for 2012-2016, and identified numerous high priority agenda items for the Plan. Chasing systemic recruiting and hiring discrimination will be the agency’s first priority, and specifically identified pre-employment tests, background screens and date of birth screens in online applications as employment practices of particular interest.
Its second priority is protecting immigrant and migrant workers from discrimination. As well, the EEOC is committed to investigating “emerging” issues, which include commonplace employer defenses asserted in Americans with Disabilities Act cases; invoking Title VII’s protections to cover the Lesbian-Gay-Bisexual-Transgender community, and encouraging employers to accommodate pregnancy.
The EEOC has expressed its commitment to pursuing employment practices that may be abandoned by private plaintiffs, presumably because of the 2011 Supreme Court decision in Wal-Mart v. Dukes, that the EEOC is not bound by the class action requirements of Rule 23 in the same manner as private litigants. The EEOC also indicated it will continue to increase its already aggressive subpoena efforts. While not abandoning its effort at eradicating all kinds of retaliation and harassment, the EEOC will redirect, it says, some of its efforts to national education and outreach. The EEOC has asked for comments by September 18, 2012, and advised it will approve a final version of the Plan by September 30, 2012, the end of its fiscal year.