Seyfarth Synopsis: On August 22, 2023, the Equal Employment Opportunity Commission officially adopted its new Strategic Plan for Fiscal Years 2022-2026. The Strategic Plan outlines the Commission's major goals and objectives over the coming years, and also sets forth various performance metrics under which its activities will be measured. Particularly notable for employers is the EEOC's greater emphasis on its systemic investigation program, its desire for increased compliance monitoring, and commitments to improve its charge intake processes. Given that the Strategic Plan describes elements of the EEOC's enforcement approach in detail, it is a must-read for employers. This is especially true for the FY 2022-2026 Strategic Plan, which is noteworthy not only for the priorities that the Commission discusses, but also for those anticipated topics that it does not.
The Significance of the EEOC's Strategic Plan
The EEOC is required by statute to submit to the White House and Congress a five-year strategic plan identifying the agency's major goals and objectives, how the agency intends to achieve those goals and objectives, and how it will measure its progress towards those goals.
The EEOC outlines its enforcement strategies through two separate documents: its Strategic Plan, and its Strategic Enforcement Plan ("SEP"). Despite the similarity in their titles, these plans serve two distinct purposes. The SEP lays out the Commission's specific priorities by highlighting certain areas of law or groups of workers that it will aim to address over the new four years. The EEOC is currently accepting public comments on its proposed SEP for FYs 2023-2027.
On the other hand, the Strategic Plan explains how the EEOC will achieve its strategic mission, including executing on the priorities contained in the SEP. In the words of the EEOC, "[t]he Strategic Plan serves as a framework for achieving the EEOC's mission to prevent and remedy unlawful employment discrimination and advance equal employment opportunity for all." The Commission released a draft of its new Strategic Plan in November 2022 (see our blog post on the proposed Plan HERE), and on August 22, 2023, it announced that it had officially adopted its Strategic Plan for FYs 2022-2026.
Strategic Goal 1: Combat and Prevent Discrimination Through Strategic Application of the EEOC's Enforcement Authority
While the EEOC's Strategic Plan is distinct from the SEP, the first goals discussed in the Strategic Plan for FYs 2022-2026 focus on the strategic application of the Commission's enforcement authority. Three noteworthy goals relate to the EEOC's systemic investigations, its monitoring of compliance with conciliation agreements, and the challenges it has been facing with charge intake.
- Emphasizing systemic investigations and litigation.
The EEOC's Strategic Plan emphasizes the EEOC's systemic program. The EEOC is committing to devoting additional resources to investigating and litigating systemic claims. The EEOC has defined systemic discrimination cases as matters involving a pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area. The Strategic Plan commits to developing these "big cases," in the hope that refocusing its efforts on these types of cases will enable the EEOC "to increase its impact on dismantling discriminatory patterns, practices, or policies." And while the SEP sets forth the EEOC's enforcement priorities, the Strategic Plan makes sweeping statements about where it will be looking to develop systemic charges, promising, "The Commission is committed to tackling systemic employment discrimination in all forms and on all bases."
There are two immediate tangible items that will flow from this commitment to the EEOC's systemic program. First, every year that this Strategic Plan is in effect, the EEOC has committed to conducting training to all field staff on identifying and investigating claims of systemic discrimination, and it expects that at least 90% of its investigators and trial attorneys will participate in this annual training.
Second, the EEOC plans to hire "at least two dedicated Enforcement Unit systemic staff members" at each District Office. While some District Offices already have dedicated systemic staff, having additional dedicated systemic staff in each District Office will unquestionably help the EEOC identify and investigate claims of systemic discrimination. Nevertheless, the commitments in the Strategic Plan will not necessarily result in new and immediate hires, as the EEOC only commits to meeting this hiring goal by the end of FY2026.
- Monitoring conciliation agreements
The EEOC's Strategic Plan also commits to "improved monitoring" of conciliation agreements. The Strategic Plan emphasizes that the successful conciliation agreements that are negotiated to resolve charges of discrimination before litigation routinely include targeted, equitable relief in addition to relief for the charging party and aggrieved individuals. The EEOC asserts that greater monitoring of the targeted, equitable relief in conciliation agreements is "critical to the EEOC's ability to ensure workplaces are free from discrimination after the EEOC makes a finding of discrimination."
But the EEOC's Strategic Plan does not explain what, exactly, this "improved monitoring" will entail, or what additional resources its enforcement staff will be committing to compliance monitoring. The Strategic Plan simply requires the EEOC to "report on enhancements" to its compliance monitoring program, on an annual basis. The EEOC is also silent on whether this improved monitoring will extend to non-monetary relief included in matters resolved post-litigation in Consent Decrees.
- Charge intake improvements
The EEOC also emphasized the EEOC's commitment to "improving and expanding access to intake services.
In October 2022, the U.S. Government Accountability Office ("GAO") issued a report finding notable inconsistencies in the EEOC's intake efforts. The GAO report observed that the EEOC was not monitoring the length of the EEOC's charge "intake" process across its many field offices. (The GAO report defined the "intake" process as starting when an individual files an inquiry, and ending when EEOC staff interviewed the individual about the alleged incident.) The GAO report found that there was wide variance in the length of the intake process. In its evaluation of data from the EEOC's 53 field offices from FY 2018 to FY 2021, GAO found that the length of time varied significantly from office to office, with the fastest office averaging 11 days from inquiry to intake and the slowest office averaging 111 days in FY 2021.
The EEOC's intake challenges have also been the subject of Congressional scrutiny and Republican oversight. In December 2022, Representative Virginia Foxx, Ranking Member on the House Committee on Education and Labor, and Representative Russ Felcher, Ranking Member on the House Education Subcommittee on Civil Rights and Human Services, urged the EEOC to incorporate the GAO report's recommendations into its strategic plan.
The GAO report recommended that the EEOC monitor field office data on the length of the intake process, in order to help it support offices that take longer to complete the process. In its Strategic Plan, the EEOC commits to "identify technological solutions and other resources to improve and expand accessibility" to intake services by FY23 – i.e., by the end of the current fiscal year. Beyond that, the EEOC is committing to "make yearly progress" in improving the availability of intake interview appointments, but it does not commit in the Strategic Plan to specific goals for speeding up intake, or to identify specific additional resources that will be deployed to aid in this process.
Nevertheless, given the GAO's recommendations, ongoing scrutiny from Congress, and the commitments in the EEOC's Strategic Plan, employers can expect that the EEOC field offices that have been struggling with long wait periods before intake interviews are conducted will be feeling increased pressure to show progress in speeding up intake.
Strategic Goal 2: Prevent Discrimination and Advance Equal Opportunities Through Education and Outreach
The Commission's second strategic goal emphasizes its education and outreach efforts. These efforts go to both educating individuals regarding their rights, and assisting employers, federal agencies, unions, and staffing agencies to prevent discrimination and effectively resolve EEO issues.
The EEOC addresses not only its education and outreach efforts, but also the populations receiving such services. The Strategic Plan emphasizes the importance of providing educational resources to vulnerable communities, such as employees who are new to the workforce, immigrants, or migrant workers. On the business side, the Plan also notes that "underserved segments of the employer community, including small, new and disadvantaged businesses" must receive training programs to assist with compliance. As part of this strategic goal, the EEOC also indicates that it will be looking to revise "priority" sub-regulatory guidance and resources, and to promote "promising practices" that employers can adopt to prevent discrimination in the workplace.
Strategic Goal 3: Strive for Organizational Excellence
The EEOC's third and final strategic goal is to pursue organizational excellent through its people, practices, and technology. Key objectives here include: (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.
While these goals might appear to be -internal only, one significant aspect is the EEOC's ongoing progress regarding the modernization of its charge/case management system, now called ARC (or the Agency Records Center). The Strategic Plan includes the agency's success in modernizing this system. While many EEOC external stakeholders have already seen aspects of ARC in action, the Strategic Plan commits the agency to linking ARC to "new and redesigned digital services for the agency's multiple external constituencies, including for charging party attorney representatives". The agency also commits to leverage "the use of data, analytics, and information management to support, evaluate, and improve the agency's programs and processes."
Using these tools, EEOC management will have greater visibility into the progress of investigations and litigation, and may better be able to exert influence over individual offices or matters.
Implications for Employers
The EEOC's FY 2022-2026 Strategic Plan contains some key takeaways for employers. Probably most importantly, the Strategic Plan expresses the EEOC's intent to ramp up its efforts in investigating and litigating matters identified as involving "systemic" issues. This priority will be reinforced not only by widespread internal training, but also by an eventual hiring increase that will allow EEOC District Offices to each have their own units tasked with investigating systemic discrimination. The Commission has filed 13 systemic lawsuits in each of the last two fiscal years, and it will be interesting to see whether the EEOC's increased systemic commitments will result in additional systemic lawsuits being filed in FY 2023 and beyond.
Stay tuned to the Workplace Class Action Blog for more EEOC analysis, as the Seyfarth team continues to analyze all EEOC activity and prepares to publish its annual EEOC-Initiated Litigation Report.
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