EEOC Focus in 2017 – Employers Beware

The EEOC announced its Strategic Enforcement Plan for the fiscal years 2017 to 2021 which outlines the areas upon which the EEOC will focus its litigation and investigation resources in the next four years.  Employers should anticipate that the EEOC will be aggressively prosecuting discrimination and other  violations that affect the most vulnerable employees, including such issues that were at the forefront of the presidential election as discriminatory practices against those workers who are Muslim or of  Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups. Other groups that may be targeted for protection by the EEOC could be recent Hispanic immigrants and the LGBT community.

Let’s take a look at six substantive priority areas the Strategic Enforcement Plan suggests might be the focus of attention.

1. Eliminating Barriers in Recruitment and Hiring

   EEOC will focus on class-based recruitment and hiring practices that discriminate against racial, ethnic, and religious groups, older workers, women, and people with disabilities. These include 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 and screening tools that disproportionately impact workers based on their protected status.

2. Protecting Vulnerable Workers, Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination

   EEOC will focus on job segregation, harassment, trafficking, pay, retaliation and other policies and practices against vulnerable workers, including immigrant and migrant workers, as well as persons perceived to be members of these groups, and against members of underserved communities.

3. Addressing Selected Emerging and Developing Issues

   As a government agency, the EEOC is responsible for monitoring trends and developments in the law, workplace practices, and labor force demographics. EEOC will continue to prioritize issues that may be emerging or developing. The following issues currently fall within this category:

   1. Qualification standards and inflexible leave policies that discriminate against individuals with disabilities;
   2. Accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act (PDA);
   3. Protecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex;
   4. Clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy; and
   5. Addressing 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, arising from backlash against them from tragic events in the United States and abroad.

4. Ensuring Equal Pay Protections for All Workers

   EEOC will continue to focus on compensation systems and practices that discriminate based on sex under the Equal Pay Act and Title VII. Because pay discrimination also persists based on race, ethnicity, age, and for individuals with disabilities, and other protected groups, the Commission will also focus on compensation systems and practices that discriminate based on any protected basis, including the intersection of protected bases, under any of the federal anti-discrimination statutes.

5. Preserving Access to the Legal System

   EEOC will focus on policies and practices that limit substantive rights, discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or impede EEOC’s investigative or enforcement efforts. Specifically, EEOC will focus on:

   • Overly broad waivers, releases, and mandatory arbitration provisions;

   • Employers’ failure to maintain and retain applicant and employee data and records required by EEOC regulations; and

   • Significant retaliatory practices that effectively dissuade others in the workplace from exercising their rights.

6. Preventing Systemic Harassment

   Harassment in the workplace continues to be one of the most frequent complaints raised before the EEOC. Forty-three percent of the complaints filed by federal employees in fiscal year 2015 were based upon workplace harassment. The most frequent allegations in federal-sector complaints are race, disability, age, national origin, sex and religion in order of frequency.

7. Learning more about EEOC compliance from an employment law attorney

   As an employer, the best way to avoid becoming the target of EEOC investigations and litigation is by ensuring that your company is in compliance with all employment laws. For more information about EEOC compliance and employment law in general, contact Kristen Tauras at McKenna Storer.