On October 17, 2016, the Equal Employment Opportunity Commission (EEOC) approved its updated Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021. The SEP reflects the EEOC’s “continued commitment to focus efforts on those activities likely to have strategic impact in advancing equal opportunity and freedom from discrimination in the workplace.” The six substantive priorities largely remain the same from the previous 2012 SEP and include (1) eliminating barriers in recruitment and hiring; (2) protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination; (3) addressing selected emerging and developing issues; (4) ensuring equal pay protections for all workers; (5) preserving access to the legal system; and (6) preventing systemic harassment.
In addition, the updated SEP identifies two new emerging areas of focus—(1) complex employment relationships in the on-demand economy which deals less with traditional employment relationships and more with contract workers, and (2) backlash discrimination against individuals who are, or appear to be, Muslim or Sikh or of Arab, Middle Eastern or South Asian descent.
The rise of staffing agencies, temporary workers, and independent contractors has the Commission paying close attention to the application of civil rights protections in that setting as part of its focus on “issues related to complex employment relationships and structures in the 21st century workplace.” This enhanced focus on how workers are employed should prompt companies to carefully analyze their relationships with temporary workers, staffing agencies and independent contractors to ensure compliance with all federal laws.
An additional component to the 21st century workplace the EEOC will scrutinize is the use of technology in recruitment and hiring decisions. The Commission is already moving forward with evaluating issues in this landscape as noted by its October 13 meeting discussing the potential discrimination of using Big Data in employment decisions. This is one example of how the EEOC intends to focus on interpreting and applying anti-discrimination laws in the increasingly technology-driven workplace.
Related to recent world events, the Commission states it will address the “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.” This objective is straightforward, however, employers should be mindful of actions that can be perceived as discriminatory. As always, best practices include uniform application of company policies and detailed documentation.
The SEP also references the EEOC’s plan to address pay disparities in general. The Commission’s previous equal pay focus has largely centered on gender-based pay discrimination. In the updated SEP, the Commission states that it “extends its equal pay priority to explicitly reach all workers.” Accordingly, employers should review their pay practices now to correct any problematic pay disparities among its employees or be prepared to defend those disparities.
Employers should expect EEOC activity in these areas to only increase. Having been provided notice of the Commission’s primary areas of focus for the coming years, prudent employers should review any policies and practices that fall under the identified categories and seek legal counsel for any concerns that are identified.
Caitlin Goforth, an attorney no longer with Poyner Spruill, was the original author of this article.