As business owners, upper management, and HR professionals are aware, the Equal Employment Opportunity Commission (“EEOC”) is a federal agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or employee based upon an individual’s race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, disability, or genetic information.
The EEOC recently issued its Strategic Enforcement Plan for Fiscal Years 2017-2021 (the “Plan”). The Plan continues the policies and practices initially pursued by the EEOC in its strategic enforcement plan for fiscal years 2012-2016 (“SEP”). The Plan provides valuable insight into areas where the EEOC will be devoting its resources in the near future, and is a must-read for business owners, upper management, and HR professionals.
The Plan makes clear that the EEOC’s priorities will be: (1) eliminating barriers in recruitment and hiring; (2) protecting vulnerable workers, including immigrant and migrant workers and under-served communities from discrimination; (3) addressing selected emerging and developing issues; (4) ensuring equal pay protection for all workers; (5) preserving access to the legal system; and (6) preventing systemic harassment.
Eliminating Barriers in Recruitment and Hiring
The EEOC’s primary focus will be on exclusionary policies and practices that impact racial, ethnic and religious groups as well as older workers, women and individuals with disabilities. The EEOC states that the growth of the temporary workforce, the increasing use of data driven selection devices and the lack of diversity in certain industries and work places are areas of concern. The EEOC specifically identifies the technology and policing professions in this portion of the Plan. The specific inclusion of the technology and policing industries should cause management to review their hiring and disciplinary practices to make sure they are up to date.
Protecting Vulnerable Workers
The EEOC will focus on job segregation, harassment, pay, trafficking, retaliation and other practices aimed at vulnerable workers. The Plan authorizes the local offices of the EEOC to identify vulnerable workers in their area. This means that EEOC offices in different areas of the country could have different enforcement tactics depending upon the individuals the local offices identify as vulnerable workers in each respective area.
Addressing Selected and Emerging and Developing Issues
The Plan allows the EEOC discretion to adapt to any areas of concern that may develop during the course of the life of the Plan. At this point in time, the Plan identifies the following emerging and developing issues of interest to the EEOC: (1) qualification standards and leave policies that may discriminate against individuals with disabilities; (2) accommodating pregnancy- related limitations under the Americans with Disabilities Amendment Act and the Pregnancy Discrimination Act; (3) protecting lesbians, gay men, bisexuals and transgender (LGBT) individuals from discrimination based on sex; (4) clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships and the on demand economy.
Ensuring Equal Pay Protection for All Workers
The EEOC will continue to focus on compensation systems and practices that discriminate on the basis of sex under the Equal Pay Act and Title VII.
Preserving Access to the Legal System
Pursuant to the Plan, the EEOC’s focus will be on: (1) overly broad waivers, releases and mandatory arbitration provisions; (2) employers’ failure to maintain and retain applicant and employee data and records as required by EEOC regulations; and (3) significant retaliatory practices that effectively dissuade others from exercising their rights.
Preventing Systemic Harassment
The Plan highlights that harassment continues to be the most frequent complaint raised in the workplace. To that end, the EEOC states that it will pursue strong enforcement with appropriate monetary relief and effective injunctive relief while also leaving open the possibility of training and outreach to deter future violations.
The EEOC makes clear that it will continue to adopt its policies and enforcement to match the ever changing workplace. In order to ensure compliance, business owners, upper management and HR professionals should periodically review their employment policies to make sure they are compliant with current laws.