The EEOC is targeting the “21st-century workplace” by focusing on gig economies and the technology sector in its new Strategic Enforcement Plan. The new Enforcement Plan also targets what the EEOC calls “complex employment relationships,” such as temporary workers, staffing agencies and independent contractors. Employers should closely evaluate issues surrounding these 21st-century workplace norms and identify how the EEOC’s new initiatives may impact them. Gig employers can expect to see policies and litigation from the EEOC expanding equal employment opportunity protections to gig workers, as it has done for LGBT workers. The typical concern with gig labor is whether the workers are employees or contractors, but the EEOC recognizes that this is a significant issue and is looking to protect these types of workers from discrimination. The agency may also bring more enforcement cases under the controversial joint employer theory in which partner entities (such as staffing agencies) and client employers are held liable for a labor violation committed by either one.
Employers should pay close attention to the new Strategic Enforcement Plan, because the EEOC “stuck to the script” when putting its last strategic plan into action by pursuing its stated priorities through systemic investigations and litigation arising from those investigations. Employers can expect the EEOC to seek to expand investigations of individual charges, particularly in substantive areas aligning with the Plan. The EEOC is telling employers what their focus will be and employers should evaluate their policies, procedures, and hiring practices to make sure that those areas do not draw unwanted EEOC attention should an EEOC Charge of Discrimination be filed or investigation be launched.
The Plan also provides additional insight into other coming enforcement goals. While the new Plan removes “retaliatory actions” from the list of conduct that it believes to be a potential barrier to the legal system, it will continue to focus on “over broad waivers, releases, and mandatory arbitration provisions”, as well as recordkeeping and “significant retaliatory practices that effectively dissuade others in the workplace from exercising their rights.” The Plan deleted “retaliatory actions” because the “term was undefined and resulted in inconsistent application.”
The other new emphasis is what the EEOC terms “backlash discrimination.” This is discrimination based on religion, race or national origin against Muslims or Sikhs or people of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups. With the increased tension created by tragic events around the world and in the US, the EEOC believes there is an increased risk of discrimination against these groups.
In a reflection of the campaign and election season, the Plan also identifies equal pay as a major issue. While maintaining its traditional focus on gender-based pay discrimination, the EEOC will make it a priority to address pay disparities that may exist in other areas, such as race, ethnicity, and disability. The EEOC is attempting to extend “its equal pay priority to explicitly reach all workers.” This priority coincides with the EEOC’s announced expansion of the EEO-1 data reporting requirements.
The lack of diversity in the technology industry and the increasing use of data driven screening tools are also recognized as focus areas within the priority on barriers to recruitment and hiring. The EEOC will be on the lookout for disparate treatment—employers using these tools and algorithms to discriminate against protected groups. Employers can avoid disparate impact—policies, practices, rules, or other systems that appear to be neutral, but result in an unintentional disproportionate impact on a protected group—by following the EEOC’s Uniform Guidelines on Employee Selection Procedures, which apply to all employers that use tests in making employment-related decisions.
The issues outlined in the Plan also include several issues that were identified in the 2012 Strategic Enforcement Plan, including accommodations for pregnancy-related limitations and protections for LGBT employees. The EEOC is also going to closely monitor claims under Americans with Disabilities Act regarding the “qualification standards and inflexible leave policies that discriminate.”
This latest Strategic Enforcement Plan, approved on October 17, 2016, for calendar years 2017 through 2021, retains those enforcement priorities set in the previous plan:
- Eliminate barriers in recruitment and hiring;
- Protect vulnerable workers, including immigrant and migrant workers and underserved communities, from discrimination;
- Address selected emerging and developing issues;
- Ensure equal pay protections for all workers;
- Preserve access to the legal system; and
- Prevent systemic harassment.
Like the 2012 plan, the 2016 Plan recognizes that additional substantive issues may be relevant in certain parts of the country. As a result, it instructs district directors and regional attorneys to ensure that directives at the field offices account for locally-significant issues while still reflecting the national directives. The EEOC continues to prioritize “vulnerable workers” and is permitting district offices, and the federal sector program, to identify particular groups or underserved communities that need “focused attention.”
Overall, the Plan provides insight into the EEOC’s expected enforcement priorities as the agency focuses on what it deems developing issues. Employers can expect EEOC activity in these identified areas to accelerate through 2021. Accordingly, employers should closely evaluate issues identified in the Plan that may impact them.