On October 17, 2016 the Equal Employment Opportunity Commission (EEOC) released its Strategic Enforcement Plan for Fiscal Years 2017-2021 (“Plan”) and businesses would be wise to take notice. The Plan is essentially a blueprint for where the EEOC will devote its resources, and establishes which substantive areas of employment will be its top priorities for the next five years. The EEOC has a known track record of following through with the articulated priorities, and as such all employers should be aware of the Commission’s top priorities which are summarized below and numbered in order of their importance to the EEOC:
1. Eliminating Barriers in Recruitment and Hiring
As its top priority, the EEOC will continue to focus on class-based recruitment and hiring practices that discriminate against racial, ethnic, and religious groups, older workers, women, and people with disabilities. Specifically, it will target exclusionary policies and practices, the “steering” of individuals into specific jobs due to their status in a particular group, job segregation, restrictive application processes (including online systems that are inaccessible to individuals with disabilities) and screening tools that disproportionately impact particular groups of people (i.e., pre-employment tests, background checks, date-of-birth inquiries, and medical questionnaires). The EEOC expressed a particular concern for the increasing use of data-driven selection devices and the lack of diversity in certain industries such as technology and policing.
2. Protecting Vulnerable Workers and Underserved Communities from Discrimination
Second in importance, is the goal to target job segregation, harassment, trafficking, pay, retaliation and other policies which affect vulnerable workers. It is clear from the Plan that the EEOC intends to focus on vulnerable immigrant and migrant workers as well as members of Native American tribes. In aid of this priority, the EEOC plans to direct its district offices and the federal sector program to actively identify vulnerable workers and under served communities. In other words, local commission authorities will be on watch for companies who employ a significant number of vulnerable workers.
3. Selected Emerging and Developing Issues
This priority continues the five issues currently considered as emerging and developing issues based upon the EEOC’s evaluation of trends and developments in the law:
(a) Targeting qualification standards and inflexible leave policies that discriminate against individuals with disabilities;
(b) Accommodating pregnancy-related limitations under the Americans with Disabilities Act and the Pregnancy Discrimination Act;(c) Protecting LGBT people from discrimination based on sex;
(d) Clarifying complex employment relationships which include temporary workers,staffing agencies, independent contractor relationships, and the on-demand economy; and
(e) Addressing discriminatory practices against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent and persons perceived to be members of these groups. New to this area is the EEOC’s inclusion of the “on-demand economy” (i.e., Uber and Lyft) and a focus on discriminatory practices against Muslims, Sikhs, and other groups. You should expect and prepare for the Commission to move forward with full force on these issues.
4. Ensuring Equal Pay Protections for All Workers
While equal pay protections will extend to all workers, the EEOC continues to focus on gender-based discrimination as well as pay discrimination based upon race, ethnicity, and disability. The Commission has already taken steps in this direction, including last month when it finalized a regulation that will require all businesses with 100 or more workers to submit pay data by gender, race and ethnicity on their employer information report (the EEO-1 report). This will impact thousands of businesses in the U.S. and will aid the Commission to identify businesses violating equal pay protections.
5. Preserving Access to the Legal System
The EEOC will continue efforts to identify and eradicate policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts. Employers should specifically avoid (a) overly broad waivers, releases, and mandatory arbitration provisions; (b) failure to maintain and retain applicant and employee data and records as required by the EEOC and Department of Labor regulations; and (c) significant retaliatory practices that effectively dissuade others in the workplace from exercising their rights.
6. Preventing Systemic Harassment
Finally, harassment continues to be one of the most frequent complaints filed with theEEOC and will therefore remain a top priority. Employers beware – the EEOC warns that strong enforcement with appropriate monetary relief and injunctive relief for employees facing harassment is critical, but not enough.
Now is the time for businesses to review their policies and practices, determine any violations of the above areas, and make necessary changes. The up front investment of time and money to engage preventive measures such as revising an employee handbook or providing better or more frequent employee training will pay off in spades and save companies the expense and headache of defending against a lawsuit brought by employees or the EEOC. In the unfortunate event of employee or EEOC action, offensive planning by employers is essential to successfully defending such claims.
The Labor & Employment Group at Clyde Snow is ready to partner with your company.