On September 4, 2012, EEOC released its draft four-year Strategic Enforcement Plan.
EEOC’s four-year strategic enforcement plan provides a window into the emerging priorities for the Commission. The Agency’s announced its number one enforcement priority is identifying and remedying systemic hiring discrimination. This is a game changer. Instead of limiting investigations of single-charging party “garden variety” charges to the facts in the charge itself, the EEOC will seek to expand such charges into company-wide systemic investigations – greatly increasing exposure for employers. This initiative will focus on all aspects of employers’ pre-employment selection processes including:
- Pre-employment tests/on-line assessments
- Credit checks
- Criminal background checks
- Drug screens
And it’s employers’ electronic data systems that are making these investigations easier than ever. Increasingly robust HRIS and applicant tracking systems make it easy for EEOC to obtain wide-ranging data and conduct company-wide trend analyses to uncover possible “hidden barriers” in the hiring process.
Paul Patten, an attorney with Jackson Lewis, summed it up best when interviewed by Law360 (a legal news publication):
If [employers] are using background checks or are using personality tests to try to match the talents of applicants with a particular job, employers should be looking at the potential disparate impact of those policies before there is a charge, or they may be in for a very long and expensive investigation by the EEOC.
The Commission believes that now is an “opportune moment to aim for bold and transformative change.” For employers, EEOC’s plan provides a roadmap of pitfalls to avoid and items employers need to start looking at proactively. Examine your pre-employment processes to uncover potential discrimination before the EEOC does.