This month the EEOC adopted a Strategic Enforcement Plan (“SEP”) for Fiscal Years 2017-2021. The SEP outlines six priority areas for the EEOC to use as guidance when allocating agency resources and prioritizing employment actions. Employers should be mindful of the EEOC’s shift in focus starting in 2017, and should revisit their internal policies regarding the following areas:
1. Eliminating Barriers in Recruitment and Hiring
Focus: The EEOC will focus on actions aimed to eliminate discrimination that takes place during recruitment and hiring: exclusionary policies and practices, the channeling/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 workers based on their protected status (e.g., pre-employment tests, background checks impacting African Americans and Latinos, date-of-birth inquiries impacting older workers, and medical questionnaires impacting individuals with disabilities).
Action: Employers should revisit their hiring policies to ensure that no direct or indirect discrimination occurs. Do you make employees fill out surveys or questionnaires? What questions are asked or boxes are to be checked? How is your application process structured? Do you require an online test, such as a food-safety or bank teller test that may be inaccessible for persons with disabilities?
2. Protecting Vulnerable Workers, Including Immigrant, and Migrant Workers, and Underserved Communities from Discrimination
Focus: The EEOC will focus on employment issues involving immigrant and migrant workers, as well as persons perceived to be members of these groups and other underserved communities.
Action: EEOC district offices will identify vulnerable workers and underserved communities in particular areas. Once identified, employers should assess whether they have workforce policies and practices that impact migrant workers or other underserved communities.
3. Addressing Selected Emerging and Developing Issues
Focus: The EEOC has identified the following areas as trending areas of concern (a) inflexible leave policies that discriminate against individuals with disabilities; (b) pregnancy-related limitations under the Americans with Disabilities Act Amendments Act and the Pregnancy Discrimination Act; (c) discrimination against the LGBTQ community; (d) employment relationships and workplace civil rights protections in light of the increasing complexity of employment relationships and structures-including temporary workers, staffing agencies, independent contractors, and the on-demand economy; (e) 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.
Action: Employers should be sure to analyze the possibility of leave as a reasonable accommodation for employees who are unable to work due to a disability (but who may recover with additional leave). Employers should think about workplace training and education involving discrimination against the above-specified communities. Employers should also assess the types of employer-employee relationships they currently have, including whether they have independent contractors or temporary/seasonal workers that may be entitled to protection under various employment laws.
4. Ensuring Equal Pay Protections for All Workers Focus: The EEOC will continue to focus on compensation systems and practices that discriminate based on sex, race, religion, ethnicity, age, disabilities, etc.
Action: Employers should review their current compensation policies to ensure that all employees are receiving the pay to which they are entitled.
5. Preserving Access to the Legal System
Focus: The EEOC will focus on employer policies that impede employees’ abilities to exercise their rights under various employment statutes. For example, overly broad waivers, releases, and mandatory arbitration provisions; employers’ failures to maintain and retain applicant and employee data and records required by EEOC regulations; and retaliatory practices that effectively dissuade others in the workplace from exercising their rights.
Action: Employers should review their current workforce grievance and internal complaint policies, as well as any arbitration agreements. Employers should also reconsider language in their employment agreements regarding waivers or mandatory arbitration provisions. Finally, employers should ensure that their document retention policies are compliant with current laws.
6. Preventing Systemic Harassment
Focus: The EEOC will continue to focus on the most common area of workplace complaints, harassment. In addition to workplace policies and practices that instigate harassment, the EEOC will focus on deterrence measures such as seeking monetary and injunctive relief to prevent future harassment of all communities.
Action: Employers should offer workplace training to educate employees, managers, and supervisors, about appropriate workplace behavior to prevent harassment.