Bloomberg BNA spoke with Eric B. Meyer, a partner at Dilworth Paxson's Philadelphia office, to find out if the four-year strategic enforcement plan approved by the Equal Employment Opportunity Commission signals a major shift in the commission's enforcement agenda.

Approved Dec. 17 by a 3-1 vote, the strategic enforcement plan (SEP) sets forth EEOC's national priorities and integrates enforcement responsibilities among its national and field offices for fiscal years 2013 to 2016.

In an interview with the Daily Labor Report, EEOC Chair Jacqueline Berrien said the SEP represents "very important step" in combating workplace discrimination and allows the commission the capacity to change in response to shifts in the U.S. workforce or economy.

EEOC called for the SEP in its strategic plan (SP) for fiscal years 2012 to 2016, which the commission approved in February 2012. However, the SP outlined a general approach on how EEOC planned to handle its case load. In the SP, "EECO really didn't show its hand as to what areas of the law it was going to pursue," Meyer said.  

In the SEP, however, the commission clearly states that it will focus on eliminating barriers in recruitment and hiring; protecting immigrant, migrant and other vulnerable workers, addressing emerging and developing employment discrimination issues; enforcing equal pay laws; preserving access to the legal system; and preventing harassment through systemic enforcement and outreach.

Meyer wasn't surprised that hiring practices are a top priority. "EEOC has broad subpoena reach in the investigative stages of a charge and would be in a better position than a plaintiff's attorney to pursue hiring discrimination cases in court, especially those categorized as systemic discrimination," he said.

Bloomberg BNA: Is this an ambitious plan given that EEOC has faced some budgetary constraints in the past set by Congress?

Meyer: I don't know if it's an ambitious plan, but I think it is a more focused plan. We will see how it plays out in the next couple of years. Based on limited resources, I don't see the EEOC taking much of an active role in investigating your traditional, run-of-the-mill type of discrimination cases.

I am talking about discrimination claims that most employers are used to seeing, such as race discrimination claims involving hostile work environment or disparate treatment and sexual harassment claims alleging a hostile workplace.

EEOC is not involved in many of the charges of discrimination that I defend. That is not a knock against the EEOC. If you are the EEOC and have a limited amount of resources, then you do what you can. Still, the agency will get involve in discrimination claims that are popping up either with the same employer, in a certain industry or in a geographical area. 

Bloomberg BNA: What's in the SEP that grabs your attention?

Meyer: EEOC is going to focus on burgeoning areas of workplace discrimination. I don't want to say fitting a square peg into a round hole because I don't think that is necessarily fair. 

The commission is not trying to create new law, so much. I think it's trying to open up holes in the law that plaintiff's attorneys may not otherwise want to pursue on behalf of a client because the case may be a risky venture.

For example, reasonable accommodation in the context of disabilities in which you and I might not naturally consider a disability. In the past year, we have seen the EEOC go after cases involving obesity as a disability. That may be something that a plaintiff's lawyer may be reluctant to pursue.

The EEOC, however, may try to broadly apply the [Americans with Disabilities Act] to certain cases to get a sense from the courts whether obesity is going to be considered a disability. That is an area where we don't have much guidance from the courts.

Based on what I read in the SEP, EEOC is also going to pursue accommodation issues within the context of pregnancy discrimination. Under the Pregnancy Discrimination Act, an employer does not have an absolute obligation to afford a reasonable accommodation to a pregnant employee.

However, if the employer affords other accommodations to other employees who suffer from other conditions that require accommodation, then it must provide an accommodation to a pregnant employee.

The agency is going to pay attention to disabilities or conditions that could arise as a result of the pregnancy. Of course, the pregnancy itself is not a disability requiring accommodation.  

Still, there may be other physiological issues that could crop up during the pregnancy, which may be deemed a disability. In that case, the employer would have an obligation to provide or at least engage in the interactive dialogue to provide reasonable accommodation to the pregnant employee.

Additionally, EEOC telegraphed in the SEP that it will focus on workplace discrimination against the lesbian, gay, bisexual, and transgender (LGBT) community. Sexual orientation is not covered as a protected class under Title VII or any other federal anti-discrimination law. EEOC will take on LGBT issues in the context of sexual stereotyping, which is unlawful.

For instance, a gay male employee might not fit into the stereotype of a man's man. Consequently, he is picked on and is made to suffer from a hostile environment because he may be perceived as effeminate. This is an area where the EEOC could jump in and say this is a gender discrimination claim based on the perceived failure to conform to a sexual stereotype. 

Bloomberg BNA: What are the key takeaways from the SEP for employers?

Meyer: Now is as good a time as any to make sure that your employee handbook, anti-harassment, non-retaliation policies and employee compliance procedures are up to date. If the information has to be revised, then roll it out along with training sessions.

Employers should be training their supervisors and employees about once a year on anti-discrimination policies. If you do it every other year, it is not the end of the world, but ideally once a year.

The employer may have to focus on issues that it didn't focus on in the past, such as handling a request for reasonable accommodation by a disabled employee and accommodation for an employee who has a sincerely held religious belief and needs a day off because of his or her religious belief. These are things that supervisors need to be keyed in on.

It's a perfect time to look at your on-boarding and hiring procedures to make sure that they are consistent with the position you are trying to fill. If you have an employee questionnaire that you are asking candidates to fill out, then make sure the questions are actually tailored toward the requirements of the position.

Don't ask for extraneous information that does not relate to the position because that increases your chances of somehow disparately impacting one protected class over another. 

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If you are interested in participating in a Q&A on enforcement actions, legal developments and news related to the Equal Employment Opportunity Commission or the Office of Federal Contract Compliance Programs or have a suggestion for a Q&A topic, send an email to lbridgeford@bna.com. You can also follow me on Twitter @LCBridgeford.