The EEOC just issued its second-ever Strategic Enforcement Plan. This is a big deal. Here’s why.
The plan will dictate where the agency will focus its compliance enforcement efforts from 2017 through 2021. In other words, if the agency investigates or sues an employer, chances are it’ll be in one of the primary enforcement areas outlined in its new Strategic Enforcement Plan.
For example, in the EEOC’s previous enforcement plan, which covered fiscal years 2013 though 2016, the agency named addressing ADA issues — such as reasonable accommodation, qualification standards and undue hardship — as a top priority. And as you may have noticed, litigation in the ADA realm has gotten a lot publicity on the agency’s website over the last few years. This has occurred for two reasons:
- the EEOC is filing a lot of charges in that area, and
- the agency wants to establish ADA enforcement as a point of emphasis.
New areas of emphasis
So what’s in the new Strategic Enforcement Plan? A lot of it mirrors the previous plan, but the EEOC also plans to break some new ground.
But let’s take it one area at a time. Here are the EEOC’s top priorities for the next five years:
- Eliminating Barriers in Recruitment and Hiring. The EEOC will focus on weeding out recruiting and hiring practices that discriminate against classes of individuals based on protected characteristics — race, ethnicity, religion, age, disability, etc. And for the first time, the EEOC will be looking at big data’s impact on the hiring practices of, predominantly, technology companies. The agency suspects that the use of algorithms and other data-based methods for recruiting employees could have a disparate impact on protected classes. Here’s the rationale: If an employer creates recruiting algorithms to find candidates based on the characteristics of those already working for the company, chances are the employer will end up with a pretty homogenized workforce.
- Protecting Vulnerable Workers, Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination. The EEOC will target disparate pay, job segregation, harassment, trafficking and other discriminatory practices and policies affecting immigrant, migrant and other vulnerable workers, who are often unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
- Addressing Selected Emerging and Developing Issues. The EEOC is responsible for monitoring trends and developments in the law, workplace practices, and labor force demographics. The EEOC will continue to prioritize issues that may be emerging or developing. The agency identified some specific issues that are “emerging”:
- Qualification standards and inflexible leave policies that discriminate against disabled individuals.
- Accommodating pregnancy-related limitations.
- Protecting members of the LGBT community from discrimination based on sex.
- The on-demand economy and the emergence of the temporary workforce. The EEOC will be looking to make sure independent contractors are properly classified and that staffing agencies do their part to prevent discrimination.
- Looking out for and addressing discriminatory practices against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, arising from backlash against them from tragic events in the United States and abroad.
- Ensuring Equal Pay Protections for All Workers. The EEOC will target compensation systems and practices that discriminate based on gender, as well as any other protected basis.
- Preserving Access to the Legal System. The EEOC will also target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC’s investigative or enforcement efforts. Specifically, the EEOC will focus on:
- Overly broad waivers, releases, and mandatory arbitration provisions.
- The required maintenance and retention of applicant and employee data and records.
- Retaliatory practices that dissuade others in the workplace from exercising their rights.
- Preventing Systemic Harassment. More than 30% of the charges filed with EEOC allege harassment. The EEOC wants to continue to work to prevent workplace harassment, particularly systemic harassment. A claim by an individual or small group may fall within this priority if it raises a policy, practice, or pattern of harassment. The EEOC believes a concerted effort to promote holistic prevention programs, including training and outreach, will deter future harassment.