Best practices for employers under the EEOC’s new strategic enforcement plan
The Equal Employment Opportunity Commission has announced its “Strategic Enforcement Plan” for years 2017 to 2021. The 2017 plan replaces the earlier version, issued in 2012, but is not a radical departure from the previous agenda. Employers hoping for a more employer-friendly EEOC under the new administration may be disappointed by the 2017 Strategic Enforcement Plan, which makes clear the agency will continue to aggressively investigate and litigate issues it sees as having the greatest impact on the development of the law or on promoting compliance across a large organization or industry. The EEOC expressed its intent to “focus on strategic impact” in order to be effective as a “national law enforcement agency,” despite its increasingly limited funding and staffing. The new plan focuses on developing substantive areas, including the “gig economy,” “backlash” discrimination against Muslim and Middle Eastern employees, and discriminatory hiring and recruitment policies. It also makes clear that hot-button topics from recent years are likely here to stay. Employers are strongly urged to develop practices now to help avoid charges and withstand agency scrutiny.
The EEOC takes on the “gig economy”
Today’s employees are more likely than ever before to be temporary, part-time, leased, employed through a staffing agency, working for more than one employer, etc. These days, more employees fall within that ill-defined gray zone between true independent contractor and employee. This “gig economy” is defined by the prevalence of short-term contracts and freelance work. In its Strategic Enforcement Plan, the EEOC “adds a new priority to address 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.”
Employers who use these types of employment arrangements must remember that these workers can equally allege discrimination or harassment. Employers should not cut corners with respect to training on anti-discrimination and anti-harassment policies. Temporary employees may be viewed as easy targets for harassment, discriminatory treatment, or bullying. As recent events at Uber have made clear, employers should remember that companies that grow quickly need to make sure they “grow up” as well, by timely implementing clear and consistent policies and encouraging a culture of professionalism.
Focus on discrimination against Muslim and Middle Eastern employees
Another highlighted focus area for the EEOC is “[a]ddressing 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[.]” While it is somewhat unusual for the EEOC to announce that it is specifically focusing on particular religious groups or nationalities, the plan explains that this strategic protection is necessary because of “backlash against [these groups] from tragic events in the United States and abroad.” It’s unclear how enforcement of this issue will proceed under the new presidential administration. However, employers must remember that employees must be given reasonable accommodations to allow for religious observances, including breaks for prayers. Appearance and dress code standards that arbitrarily ban or restrict beards, turbans or head coverings are likely to draw increased scrutiny from the EEOC. Backlash discrimination should be specifically covered in anti-discrimination training.
Barriers in recruitment and hiring targeted
The EEOC restated its commitment to the elimination of barriers in recruitment and hiring, but added new details to this goal. Specifically, the EEOC will be taking aim at the lack of diversity in certain industries, including technology and policing, and the increasing use and impact of data-driven employment screening tools. Employers in these targeted industries should continue to focus on recruiting a diverse workforce.
Employers who use online applications and algorithms or other similar data tools to screen applicants must be particularly careful. These tools can provide a first look at applicants and assist hiring managers. However, employers must know what parameters are used in such screening and make sure they consider how such screening could cause barriers (even unintentionally) for certain groups, such as older workers, minorities, or people with disabilities. For example, a screening tool that automatically eliminates applicants with a long gap in employment may unintentionally have a disparate impact on women who left the workforce for a time to care for a young family. Date-of-birth inquires could be discriminatory against older workers. An online application process that is not accessible to those with disabilities presents an obvious problem.
Screening applicants by checking their social media profiles can also be risky, since social media profiles may reveal more than the potential employer should know about an employee’s religion or other protected characteristics.
Continued focus on pregnancy discrimination, unequal pay, and LGBT protections
The EEOC will also continue to prioritize substantive issues such as pregnancy discrimination, unequal pay, and protecting LGBT individuals from discrimination.
With regard to pregnancy discrimination, the EEOC’s focus has been on accommodating pregnancy-related limitations for employees. Employers are reminded that pregnant employees should be treated the same as other non-pregnant employees with similar ability or inability to work. Remember, you cannot force a pregnant employee to take leave or move roles because you believe a pregnant employee should not perform a certain job when the employee herself has not requested it. At the same time, a pregnant employee who requests an accommodation should be treated the same as other employees requesting accommodations.
The EEOC will continue to focus on the issue of unequal pay. However, the plan makes clear that the EEOC is not strictly focused on equal pay as a gender issue. “[T]he Commission will also focus on compensation systems and practices that discriminate on the based on any protected basis.” The EEOC’s guidance reminds employers that pay differentials should be based on seniority, merit, quantity or quality of production – not on protected characteristics.
Finally, as employers likely know by now, the EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. The EEOC has enjoyed great success enforcing this position. It has obtained more than $6 million of monetary relief for LGBT workers, required policy changes for employers, and convinced a growing number of courts to endorse its interpretation of Title VII. EEOC charges based on sexual orientation or gender identity increased 34% in 2015 over 2014. The EEOC is unlikely to slow down in its strategic enforcement in this area, and employers would do well to include sexual orientation and gender identity as protected categories in their equal employment and anti-harassment polices. The Human Rights Campaign has reported that the vast majority — 89% — of Fortune 500 companies already prohibit discrimination on the basis of sexual orientation, and two-thirds prohibit gender discrimination based on gender identity. Other employers would do well to follow suit.