Employers take note: the EEOC has issued an updated Strategic Enforcement Plan (“SEP”) for fiscal years 2017-2021.
What’s a Strategic Enforcement Plan?
The EEOC’s SEP describes the areas that will be a priority focus for its enforcement efforts over a particular period of time. In some instances, it describes a particular component of the employment relationship (for example, the application process) that it will scrutinize more. In other instances, it describes a particular basis of discrimination that it will focus on (for example, employees who are or are perceived to be Muslim, or LGBT employees). Ultimately, the SEP is best understood as a kind of statement of intent–i.e., where the EEOC will focus resources in the coming years.
What Isn’t a Strategic Enforcement Plan?
The EEOC’s SEP is not a statement of exclusion. That is, just because a specific workplace issue or protected characteristic is omitted (or not emphasized) within the SEP doesn’t mean the EEOC will ignore that particular issue or characteristic. Employers should expect that the EEOC will continue to enforce all of the relevant discrimination laws on the books. The SEP merely acts as a guide for the EEOC to focus its enforcement efforts.
What Will the EEOC’s Priorities Be Under the Updated Strategic Enforcement Plan?
The EEOC’s SEP has identified six national priority areas for enforcement in FY 2017-2021:
1. Eliminating Recruitment/Hiring Barriers. Moving forward, the EEOC will put additional emphasis on recruitment and hiring. This includes exclusionary policies and practices. In addition, the EEOC has noted it will focus on job channeling/steering and job segregation; restrictive applications; pre-employment tests/screenings and background checks that affect African-American and Latino employees; date-of-birth inquiries that affect older employees, and medical questions that affect people with disabilities. On the issue of restrictive applications, the EEOC has also highlighted online application systems that are inaccessible to applicants with disabilities.
2. Protecting Vulnerable Workers and Underserved Communities. Evaluating local issues and concerns, the EEOC’s district offices will identify particular vulnerable workers and underserved communities for enforcement attention. As an example, the EEOC notes that some offices may target discrimination against Native American employees for increased focus.
3. Addressing Selected Emerging and Developing Issues. These include: qualification or leave policies that discriminate on the basis of disability; accommodations for disabilities and pregnant workers; protecting LGBT employees from sex discrimination; addressing discrimination laws in the context of evolving job market structures/relationships (for example, temps, staffing agencies, independent contractor relationships, the on-demand or “gig” economy, etc.); and “backlash discrimination” against Muslims, Sikhs, persons of Arab, Middle Eastern, or South Asian descent (or perceived members of these groups).
4. Equal Pay. The EEOC will continue its efforts to address sex-based pay discrimination under Title VII and the Equal Pay Act and will also focus on pay practices that discriminate on any protected basis. In particular, the EEOC has noted pay discrimination on the basis of race, ethnicity, age, and disability remains an issue that it intends to continue targeting.
5. Preserving Access to the Legal System. The focus here will be on employer policies or practices that it perceives as limiting employee rights, discouraging employees from exercising their rights, or impeding the EEOC’s efforts. In addition to retaliation, the EEOC has indicated it will focus on overly broad waivers/releases, certain mandatory arbitration agreements, and employer failure to retain required applicant/employee data.
6. Preventing Systemic Harassment. The EEOC notes that over 30% of charges allege harassment (and that “the most frequent bases alleged are sex, race disability, age, national origin and religion, in order of frequency”). The EEOC has stated it will seek to promote “holistic prevention programs” that it believes will serve as a deterrent to violations.
Of course, this brief summary is not exhaustive; click here for the full document. Ultimately, the updated SEP is a reminder for employers to review their policies and practices as 2016 draws to a close, in order to ensure compliance.