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EEOC’s proposed Strategic Plan seems heavy on litigation, light on mediation

EEOC’s proposed Strategic Plan seems heavy on litigation, light on mediation

The U.S. Equal Employment Opportunity Commission has issued a draft Strategic Plan for 2022-26, and is inviting public comments through Monday, December 5.

Here is a quick-and-dirty:

The EEOC wants to ramp up its inclusion of “targeted, equitable relief” in connection with conciliations and settlement of lawsuits. This includes things like requiring the employer to provide training, issue policies or revise existing policies, and report to the EEOC on its progress. 

The EEOC has been doing this for a long time, often before it issues a determination on a charge. The only thing I noticed in the Plan is that there is mention of “conciliation” (resolution after the EEOC has determined that the employer was at fault) and “litigation,” but no mention of pre-determination resolution, such as mediation or simply a call from the investigator saying, “Before we issue a determination, would your client agree to provide harassment training in exchange for dismissal of the charge?” That, coupled with the fact that I saw “mediation” mentioned nowhere in the Plan, says to me that the EEOC may be planning to become more adversarial and less inclined to seek resolution early on.

The EEOC is putting renewed emphasis on “systemic discrimination.”

The Plan says that the EEOC will increase training for its staff on systemic discrimination and “[b]y 2026, every District will have at least two dedicated Enforcement Unit systemic staff members.” The agency will “[r]efocus[] efforts on cases that have a broad impact on an industry, profession, company, or geographic region.” In other words, expect more “big” cases from the EEOC, and more frequent expansion of individual cases into “systemic” ones.

Outreach, etc.

The EEOC wants to better educate the public, as well as “[e]mployers, federal agencies, unions, and staffing agencies” about discrimination. With respect to the general public, the EEOC wants to focus its educational efforts on “individuals who historically have been subjected to employment discrimination” and “provide technical assistance to underserved segments of the employer community, including small, new and disadvantaged businesses.”

Other terms include increased use of technology and analytics, issuing guidance in plain language, and other fairly non-controversial measures.

No mention of the mediation program.

As our regular readers know, I have been a big fan of the EEOC’s mediation program. We haven’t always been able to settle, but the overwhelming majority of EEOC mediations I’ve been involved in did result in settlement. And the EEOC mediators, at least in North Carolina, are great. So it bothers me that the draft Strategic Plan does not have one word about the mediation program. (It’s possible that there was one word in there and that I missed it, but I don’t think so.) As noted above, my impression is that the agency seems to want to move in the direction of more litigation and more aggressive litigation.

Some disclaimers

As the draft Strategic Plan recognizes, the Plan will not necessarily go into effect after the comment period expires. If funding for the agency decreases, some of its goals may not be able to take effect. Court rulings may also limit or — as in the case of LGBT employees — expand what the agency can do. Finally, the Plan will have to be approved by a majority of the EEOC Commissioners.

On that last point, the EEOC still has a 3-2 Republican majority, but that’s about to end. Janet Dhillon, who was the EEOC Chair during most of the Trump Administration — and who has also been a strong advocate for the mediation program — will be leaving at the end of the year. (Her term expired in July, but she was able to stay on through the end of 2022 because President Biden was not able to get a replacement confirmed.) When Commissioner Dhillon leaves, there will be two Republicans and two Democrats on the Commission. Unless President Biden can get a nominee confirmed to replace Commissioner Dhillon, there may be a deadlock on the Strategic Plan — or, at least, some more employer-friendly amendments that might sweeten the Plan for one or both of the remaining Republican commissioners.

Read the complete article here.

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