Call for Comments to the EEOC’s new strategic plan due 9/18

It seems that change is afoot.

The EEOC is seeking public comments (see below) on a proposed new strategic plan that it hopes will be more effective than the EEOC’s prior practice of filing individual lawsuits against select employers.

In its new plan, the EEOC says it will strategically attack practices and issues that adversely affect large numbers of employees. The EEOC identifies five national priorities:

1. Eliminate Systemic Barriers in Recruitment and Hiring. The EEOC will target class-based hiring discrimination and facially neutral hiring practices that adversely impact particular groups. This includes, for example, steering of individuals into specific jobs due to their status in a particular group, restrictive application processes, and the use of screening tools (e.g., pre-employment tests, background screens, date of birth screens in online applications) that adversely impact groups protected under the law.

2. Protect immigrant, migrant and other vulnerable workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory language policies affecting these vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.

3. Address Emerging Issues. The agency will address emerging issues with respect to:

-The Americans with Disability Act, particularly coverage issues, and the proper application of ADA defenses, such as undue hardship, direct threat, and business necessity;

-Lesbian, gay, bisexual and transgender individuals coverage under Title VII sex discrimination provisions.

-Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.

4. Preserve Access to the Legal System. The EEOC will target policies and practices intended to prevent individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC’s investigative or enforcement effort, including retaliatory actions; overly broad waivers; and settlement provisions that prohibit filing charges with EEOC.

5. Combat Harassment. The EEOC will launch a national education and outreach campaign – aimed at both employees and employers – to prevent and appropriately respond to harassment in the workplace.

Okay, some of this sounds like politically-correct gobbledygook that is incapable of measurement. At the same time, it is encouraging that the EEOC is rethinking its past practices. The 38 percent increase in charges filed with the EEOC also represents an increase the suffering of American workers and their families who are subjected to illegal discrimination by employers.

Comments and suggestions must be submitted to the EEOC about the plan by 5 p.m. ET on September 18, 2012 at [email protected] or received by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507. The Commission plans to vote on the draft plan at the end of this fiscal year.

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My #1 suggestion is jail time as a remedy for workplace bullies in extreme cases such as late night cyperbullying, stalking, damaging personal property such as broken windshields or punctured tires, etc. This is called “criminal harassment”.

I would like to see the full list of potential remedies for EO Complaints posted somewhere very obvious on the EEOC’s website, and the distinction between complaints filed by Federal employees and private sector employees made clearer.

I would also like to see a strong focus during EEOC hearings on harassment/retaliation cases that continue and escalate well into EO investigations after an EO Complaint is filed, and an emphasis on “Zero Tolerance” policies and settlements for workplace bullies who take the harassment outside of work hours, with dismissal for the manager as general practice in the courts, and the maximum allowable financial remedies to the victim.

The “off-work” hours harassment is particularly damaging since the victim no longer feels safe even in their own home.

The costs of workplace bullying escalate significantly if the employer fires the Complainant after an EO Complaint is filed. Retaliation lawsuits can bring in as much as $168 M for settlements in cases where the employer choses to dismiss the complainant rather than reprimanding, re-assigning or firing the harassing managers.

I would also like to see more awareness around “mobbing” which is a sophisticated form of workplace bullying where management aligns against the Complainant as a team, with “mobsters” typically numbering in the dozens, and one or two “Mobbing Ringleaders”. The purpose of mobbing is to send a clear message to the Complainant that he/she is no longer welcome at the company or the Agency, and that the harassing managers have support from higher-ups.

Finally, although perhaps not the direct purview of the EEOC, I would like to see laws enacted that require employers to take action when an employee reports workplace bullying such as reassigning the employee to a new organization or an interim relief supervisor until the Complaint process ends and a settlement agreement is reached. Leaving employees in the offending organizations and subjecting them to continual and ongoing harassment is the primary cause of the high costs of lawsuits since the damages accumulate over time.

Please see my personal blog for more information about the newly formed Anti-Bullying Congressional Caucus:

I would like to see the EEOC work closely with this Caucus to enact new laws and strengthen existing laws for workplace bullies, even when the bases is not discrimination based on age, race, gender, etc. This is really the biggest gap in our workforce laws today: non-discriminatory bullying.