By: Carol G. Schley, Clark Hill PLC
Recently, the Equal Employment Opportunity Commission (“EEOC”) issued an updated Strategic Enforcement Plan (the “Plan”), which provides a roadmap of where the EEOC will focus its efforts and resources for the years 2017 to 2021. The Plan builds on a prior EEOC plan covering the period of 2013 to 2016, and contains many of the same priorities.
Under the Plan, the EEOC identifies six areas “where government enforcement is most likely to achieve broad and lasting impact,” including the following:
- Eliminating Barriers in Recruitment and Hiring.
The EEOC will continue to focus on class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups and also older workers, women and the disabled. With respect to this area, the EEOC notes a particular concern regarding “data-driven selection devices” for hiring employees, and the lack of diversity in the technology industry and law enforcement.
- Protecting Vulnerable Workers.
This area of focus by the EEOC concerns job segregation, harassment, trafficking, pay, retaliation and other employment practices that negatively impact or discriminate against immigrant and migrant workers and members of underserved communities. Per the EEOC, “[t]hese workers are often unaware of their rights under equal employment laws, or reluctant or unable to exercise them.”
- Addressing Emerging and Developing Issues.
The EEOC will pay particular attention to the following areas over the next few years, which may be subject to change as the law develops: (a) qualification standards and inflexible leave policies that discriminate against individuals with disabilities; (b) accommodating pregnancy-related limitations; (c) protecting the LGBT community from discrimination based on sex; (d) clarifying the workplace relationship and application of civil rights protections “in light of the increasing complexity of employment relationships and structures,” with respect to temporary workers, staffing agencies, independent contractors and the “on-demand economy;” and (e) discrimination against those who are Muslim or Sikh, or of Arab, Middle Eastern or South Asian descent (and those perceived to be members of these groups), “arising from backlash against them from tragic events in the United States and abroad.”
- Ensuring Equal Pay.
The EEOC will continue its focus on pay discrimination on the basis of sex and other protected classes such as race, ethnicity, age and disability. The EEOC will be assisted in this task by the new EEO-1 form, which requires employers to disclose employee pay data.
- Preserving Access to the Legal System.
On this point, the EEOC will focus on policies and practices that limit substantive rights, discourage or prohibit individuals from exercising their rights, or impede the EEOC’s investigation or enforcement efforts. This includes: (a) overbroad waivers and releases of claims and mandatory arbitration provisions in agreements; (b) employers who fail to maintain applicant and employee information as required by the EEOC; and (c) retaliatory workplace practices that dissuade employees from exercising their rights.
- Preventing Systemic Harassment.
Per the EEOC, “[h]arassment continues to be one of the most frequent complaints raised in the workplace,” with harassment on the basis of sex, race, disability, age, national origin and religion being the most frequently alleged. The EEOC will pursue “strong enforcement” of anti-discrimination laws by seeking monetary and injunctive relief against employers, and also promote training and outreach to deter violations of the law.
Based upon the EEOC’s stated areas of focus in the Plan, employers should take proactive steps to ensure their compliance with the law and minimize their legal exposure. Such steps should include: (1) a review of employee handbooks and other employee-related documents, to ensure they are updated and sufficiently comprehensive; (2) a review of hiring and employment practices, to ensure that they do not negatively impact or create barriers for individuals in protected classes; (3) a review of temporary worker and independent contractor relationships, to ensure they do not actually establish an employer/employee or joint employment relationship; (4) ongoing anti-harassment training in the workplace, with special attention to the protected classes that will be getting increased attention from the EEOC; (5) a review of employee compensation, to ensure that any differences in pay are based upon legitimate, lawful criteria and do not give rise to an inference of discrimination based upon sex or any other protected class. In light of the complexity of these areas and the ever-evolving body of law governing the workplace, it is advisable to undertake these tasks with the assistance of legal counsel.
Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC. She can be reached at firstname.lastname@example.org or (248)530-6338.
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