The EEOC's new game plan is an open book
The EEOC recently approved an update to its initial Strategic Enforcement Plan (“SEP”) that covered fiscal years 2013 - 2016. The original SEP brought new focus to the agency’s key priorities and enforcement initiatives. The updated SEP refines those priorities and is intended to take the EEOC’s game to the next level for fiscal years 2017 – 2021.
The EEOC’s first SEP
The EEOC used its first-ever strategic enforcement plan to establish six key priorities for defeating workplace discrimination:
- Eliminating barriers in recruitment and hiring;
- Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination;
- Addressing selected emerging and developing issues;
- Ensuring equal pay protections for all workers;
- Preserving access to the legal system; and
- Preventing systemic harassment
The EEOC executed on its’ playbook and employers saw (and sometimes felt) the EEOC’s priorities play out through increased guidance, investigations, and litigation. Consider just some of the EEOC-activity over the past four years:
- Enforcement guidance on pregnancy discrimination
- Enforcement guidance on retaliation and related issues
- Guidance regarding the rights of employees who seek leave as an accommodation under the ADA
- Fact Sheet: Bathroom access rights for transgender employees
- First-ever lawsuits alleging transgender and sexual orientation discrimination
- Litigation over the use of criminal background and credit check
The EEOC's 2017 - 2021 SEP
The EEOC has taken its effective game plan and refined it in the updated 2017 – 2021 SEP. The Plan continues to focus on the six core priorities while honing in on specific aspects. As the EEOC’s Chair Jenny R. Yang has noted, the new SEP “builds on the EEOC's progress in addressing persistent and developing issues by sharpening the agency's areas of focus and updating the plan to recognize additional areas of emerging concern."
Within the six existing core priorities, the EEOC will focus on:
1. Eliminating barriers in recruitment and hiring. The EEOC considers lack of diversity in the technology industry and the increasing use of data driven screening tools as key hiring barriers. The EEOC has already announced a “listening session” to get “input” on what it suspects may be the use of analytics in a way that has a disparate impact on hiring and other employment practices of protected status workers. As Yang also commented recently, “it is critical that these tools are designed to promote fairness and opportunity, so that reliance on these expanding sources of data does not create new barriers to opportunity."
2. Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination. The EEOC has committed to protecting vulnerable workers by charging its’ district offices and other federal sector programs with identifying vulnerable workers and underserved communities within their areas for focused attention.
3. Addressing selected emerging and developing issues. The EEOC has identified several areas for refinement in this category. The EEOC will narrow the focus on disability issues to include qualification standards that pose barriers for disabled workers as well as inflexible leave policies that discriminate against individuals with disabilities.
In addition, the EEOC has identified two new “emerging” priorities: (1) the impact of the “gig” economy on workplace fairness through “issues related to complex employment relationships and structures in the 21st century workplace, focusing specifically on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy;” and (2) “backlash discrimination” against individuals 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.”
4. Ensuring equal pay protection for all workers. The EEOC will target compensation systems and practices that discriminate based on gender and will extend that focus to reach pay inequities among all protected status workers.
6. Preventing systemic harassment. Harassment claims remain a significant portion of the discrimination charges filed with the EEOC. In June 2016, the EEOC issued a report on the "complex issues associated with harassment in the workplace” and recommended changes to the nature of harassment prevention programs. The EEOC will continue that focus through a concerted effort to
“promote holistic prevention programs” including training and outreach, to deter future harassment.
The 2017 – 2021 SEP is the EEOC game plan for the next five years. It’s an open book for employers to study and adapt their practices to avoid game changing penalties.
