On February 22, 2012 the Equal Employment Opportunity Commission (EEOC) voted 4-1 in favor of its 4-year strategic plan, which outlines the agency’s goals and achievement benchmarks for enforcing the various anti-discrimination laws under its jurisdiction, as well as its mission to carry out education and outreach efforts. As with the draft version of the plan released last month for public comment, the final document places a great deal of emphasis on enforcement and the targeting of systemic discrimination.
One way the new strategic plan differs from the EEOC’s prior plan, according to the agency, is how it measures its performance in reaching the following three strategic objectives: combating employment discrimination through strategic law enforcement; preventing employment discrimination through education and outreach; and delivering excellent and consistent service through a skilled and diverse workforce and effective systems. According to EEOC Commissioner Chai Feldblum during the Feb. 22 meeting, the plan “focuses less on measuring numbers for numbers’ sake, and more on measuring what we need to do in order to achieve our long-term goals.” As stated in the Message from the Commission, the diminished reliance on specific number goals:
is in recognition of the fact that some of the Commission's previous numbers-based performance measures may have had unintended adverse consequences for the agency. Thus, we have taken a step back in the plan, developing performance measures that require us to first establish baselines in various areas and then think critically about what we should measure in order to determine the agency's effectiveness.
To this end, for each of the EEOC’s strategic objectives, the plan identifies certain outcome goals it seeks to achieve, various strategies for reaching these goals, and 14 specific performance measures for gauging the agency’s progress in attaining each goal. For example, the two outcome goals for the plan’s the Strategic Law Enforcement objective are to: “have a broad impact on reducing employment discrimination at the national and local levels” and to “remedy discriminatory practices and secure meaningful relief for victims of discrimination.” One listed strategy for achieving these goals:
includes the development of a new strategic enforcement plan to better leverage the Commission’s resources to stop and remedy unlawful employment discrimination and to build on its existing systemic program to remedy discrimination against large numbers of individuals or where the discrimination has a broad impact on an industry, profession, company, or geographic area.
Other strategies include:
- ensuring that remedies end discriminatory practices and deter future discrimination;
- seeking remedies that provide meaningful relief to individual victims of discrimination; and
- using administrative and litigation mechanisms to identify and attack discriminatory policies and other instances of systemic discrimination. The agency defines systemic cases as those that address pattern or practice, policy, or class cases where the alleged discrimination has a broad impact on an industry, occupation, business, or geographic area.
Performance benchmarks the EEOC identifies for measuring its performance in achieving the above strategies include ensuring that by 2016 a certain percentage of cases in its litigation docket are systemic cases, and that a certain percentage of the agency’s administrative and legal resolutions “contain targeted, equitable relief.”
Many of the target percentages listed in the strategic plan have not yet been established.
While Commissioner Victoria Lipnic expressed “overall” support for the strategic plan, she voiced “some reservations about some of its themes.” Lipnic stated that the agency’s “focus on systemic investigation must not create an environment that fosters or encourages any excessive investigations or litigation,” and that it is “important that investigations are not artificially expanded for the sake of filling the Commission’s numbers docket.”
Constance Barker, the sole Commissioner who voted against the plan, offered both praise and criticism of the strategic plan. She began her comments by stating that the plan “does contain a number of good points,” including the use of quality over quantity as a measure of EEOC attorneys’ performance. She offered hope “that in the end, what the plan allows us to do is stop evaluating professional lawyers on the basis of the number of lawsuits that they file.” She also praised the agency’s plan to increase its social media presence as part of its public outreach goals. She ultimately voted against the plan, however, because it “simply does not reflect my view of the Commission or its priorities at this time.”
According to Barker, the EEOC is losing focus of its “core mission,” which is to “prevent discrimination from ever occurring,” not to stop nor to provide remedies once discrimination has occurred. “So to the extent that this plan does not provide that as its first and foremost strategic priority, the plan simply and profoundly misses the mark.”
In her concluding remarks, Barker emphasized that employment discrimination law is not static, and that employers need to be better apprised of their obligations as the law evolves. She said that “every time we issue guidance and suggest a broader interpretation of the law, we’re shifting that landscape.” Therefore, the EEOC should focus on greater public outreach and education to prevent discrimination in the first instance, not to increase its response once it has. She criticized the plan for giving “lip service to prevention” then going “straight to enforcement.”
Barker claimed that the agency’s vision was similarly off track and overreaching. She noted that the goal for the EEOC is to provide equal employment opportunity, not to ensure justice and fairness for all. Barker said that there are many employment practices that might not be fair, but are not necessarily illegal, and that the EEOC cannot and should not police such activities: “No matter how well-intended the global aspirational goal of justice and equality for all in the workplace may be, it is not appropriate for the Commission to adopt a vision for the Commission that does not reflect the role of the Commission or the intent of the statute they are interested to uphold.”
An archived video of the Feb. 22 meeting can be accessed here.
Photo credit: istockphoto