Employment & Labor Insider

The Equal Employment Opportunity Commission recently released its Strategic Enforcement Plan for 2018-2022.

During the Obama Administration, employers and their lawyers waited for the latest SEP with trepidation. Each SEP would have us girding our loins for whatever creative legal theories the Agency planned to aggressively pursue against employers in the coming years.

This year, the SEP left me yawning. 

The five-commissioner agency has had only three commissioners since last summer, and it's been without a "regular" chair since shortly after President Trump took office. (Republican Victoria Lipnic has been acting chair.) The President's two nominees, Janet Dhillon and Daniel Gade, have been waiting . . . and waiting . . . and waiting for a Senate confirmation vote. In fact, their nominations were pending for so long that the nominations were ready to expire, but Senate Democrats agreed to consider them in 2018 without requiring the President to re-nominate them. (Chai Feldblum, a Democrat and current Commissioner, has also been nominated for another term.)

With all of these nominations up in the air, it's not surprising that the Agency's SEP is somewhat noncommittal.  But if you read it closely (and between the lines a bit), I think you'll find that it's overall good for employers. Here are some highlights:

• The EEOC will continue to focus on charges where systemic discrimination appears to exist.
• The EEOC will pay more attention to discrimination in federal government employment. (Less scrutiny of private sector employers?)
• In cases where "reasonable cause" is found, the Agency will put more emphasis on non-monetary relief "which explicitly addresses the discriminatory employment practices at issue in the case" and "provides remedies to the aggrieved individuals or prevents similar violations in the future." The examples given in the SEP include training, policy development, "and external monitoring of employer actions, as appropriate." (More training, less money? I can live with that.)
• The Agency will pursue litigation "responsibly," focusing on cases where it has a reasonable chance of success -- either through a "win," or through a consent decree or settlement. ("Responsibly" usually means "in moderation." As in, "Drink Responsibly.")
• The Agency will continue to provide outreach and technical support, but especially to small businesses and new businesses. (More empathy for problems faced by small and new businesses?) From the employee side, it will focus on "particularly vulnerable communities that may be unfamiliar with our laws," including people who are new to the workforce (teenagers, I assume), and immigrants.
• The Agency will beef up its social media presence and its use of technology in general. (The EEOC's website looks great . . . or would, if this were 1999.)
• The agency will focus on getting its own house in order, by assessing its own "employee engagement and inclusiveness." (Less time for the rest of us?)

No drama. I like it!