In October, the EEOC unveiled its four year Strategic Enforcement Plan (SEP). The SEP provides employers insight into areas the EEOC plans to focus on in the coming years. This heads-up plan allows companies to take steps to ensure their businesses are compliant when there is a knock at the door.
The new SEP does not contain any major changes from the EEOC’s prior strategic direction. Instead, the EEOC will continue its emphasis on many of the priorities that it set forth in the 2012-2016 four year SEP. Employers should expect continued focus on the EEOC bringing litigation in large-scale, high-profile and high-impact cases. Employers should also be careful when classifying workers as independent contractors or temporary workers.
For Fiscal Years 2017-2021, the EEOC has identified six priority areas under this new SEP. Employers should be mindful of this direction and review their internal policies to confirm they are in conformity with the law in the following areas:
- Eliminating Barriers in Recruitment and Hiring
The EEOC will prioritize eliminating discrimination related to recruitment and hiring, including employer policies and practices of exclusion, screening that disproportionately impacts workers in protected categories, and placing of individuals into specific jobs inappropriately based upon protected categories.
Employers: Review your hiring policies to confirm there are no discriminatory practices in your recruitment and hiring processes or procedures. For example, revisit your employment applications and determine whether any tests or surveys you make employees complete disproportionately impact a protected class or are inaccessible for persons with disabilities.
- Protecting Vulnerable Workers, Including Immigrant, and Migrant Workers, and Underserved Communities from Discrimination
The EEOC will prioritize enforcing equality for immigrant and migrant workers and persons perceived to be members of these groups as well as other underserved communities.
Employers: Identify those vulnerable, immigrant, and migrant workers and underserved communities in particular areas. Employers should assess whether they have workforce policies and practices that impact these workers or underserved communities.
- Addressing Selected Emerging and Developing Issues
The EEOC will focus on the following areas: (a) inflexible leave policies that discriminate against individuals with disabilities; (b) pregnancy-related limitations that violate the Pregnancy Discrimination Act and the Americans with Disabilities Act Amendments Act; (c) the increasing and continued complexity of employment relationships and work-structures, including those relationships involving temporary workers, staffing agencies, independent contractors, and the on-demand economy (for example, Uber drivers); (d) LGBTQ discrimination; (e) discriminatory practices against persons of Arab, Middle Eastern or South Asian descent, those who are Muslim or Sikh, and persons perceived to be members of these groups.
Employers: Review your leave policies and ensure leave is considered as a reasonable accommodation for employees who are unable to work or to return to work after a leave due to a disability. Review your policies on providing accommodations for pregnant workers. Schedule training for all managers/supervisors and employees to educate them about laws protecting employees against discrimination and each person’s obligation to promote and maintain a discrimination and harassment-free workplace.
Determine whether you are properly classifying workers as employees, independent contractors, or temporary/seasonal workers, as the EEOC continues its focus in this area as it has in the past many years. Importantly, this SEP acknowledges the changing workforce in the 21st Century. More and more people are working in alternative or contingent workplace arrangements, including the Uber-like on-demand jobs of today. This SEP will likely involve the EEOC’s closer look and focus on these types of emerging work arrangements, and employers can expect the EEOC to challenge and litigate these high-profile issues in the coming years.
- Ensuring Equal Pay Protections for All Workers
The EEOC will renew its focus on safeguarding compensation systems and ensuring such practices do not discriminate against workers based on race, religion, ethnicity, sex, age, disability, or any other protected categories under the law.
Employers: Employers should review their current compensation policies and practices to ensure that all employees are receiving the pay to which they are entitled. This may include an audit of the company’s compensation structure. Companies should consider having outside legal counsel perform such an audit as that process may allow for certain privilege protections.
- Preserving Access to the Legal System
The EEOC will target employer policies that impede the ability of employees to pursue their workplace rights. This includes aiming its efforts at overly broad waivers or releases and mandatory arbitration provisions as well as ending practices that deter employees from exercising their legal rights. The EEOC will also focus on ensuring employers maintain the appropriate applicant and employee data and records as required by EEOC regulations.
Employers: Review the language in your waivers, releases, and arbitration agreements. Review the language in your handbook policies to ensure they do not stifle employees ability to exercise their legal rights in the workplace. Confirm your company is properly retaining documents as required under the law.
- Preventing Systemic Harassment
The EEOC will renew its heightened focus on ending harassment in the workplace. Continued attention will be given to workplace policies and practices. Again, focus will be given to deterrence measures that put a stop to future harassment. With an expected increase in litigation, this includes the EEOC bringing enforcement actions in court against companies that seek monetary damages and injunctive relief.
Employers: Review your handbook policies and procedures on appropriate behavior in the workplace and anti-harassment and retaliation policies. Train managers, supervisors, and employees about expected behavior in the workplace and everyone’s obligation to promote a harassment and discrimination free workplace.
Employer should start preparing for the next four years today.