Last month, the Equal Employment Opportunity Commission released its strategic enforcement plan for the next four years. The plan provides employers with an indication of where the EEOC will devote its enforcement and litigation resources. It resulted from a series of public meetings and solicitation of public input.

The plan includes several priority designations from previous versions, including emphasis on discrimination in recruiting, and protection of immigrant workers. The EEOC added a new enforcement designation for equal pay claims, particularly claims based on gender discrimination. The agency stated that a large number of comments received from employee interest organizations urged the EEOC to add equal pay as an enforcement priority.

These comments may have resulted from frustrations faced by these groups in getting new equal pay legislation through Congress. Given bleak prospects for such legislation in the new Congress, these groups appear to have shifted their efforts toward more vigorous enforcement of existing equal pay laws. These claims are difficult for the EEOC to prove because they do not include the concept of comparable worth. The agency must prove that the employer engaged in pay discrimination between arguably equivalent positions.

Despite these difficulties, the EEOC will seek to identify promising equal pay claims for litigation. Employers should be prepared to demonstrate the business reasons for pay disparities, especially those among employees of different genders at the same horizontal level within the organization. Are they based on education, experience, market demand or other objective criteria? The employees' relative bargaining abilities when negotiating salaries will not be viewed as a legally defensible reason for setting salaries at different levels.