EEOC Issues Updated Strategic Enforcement Plan: What Should Employers Do Now?

On October 17, 2016 the U.S. Equal Employment Opportunity Commission (EEOC) approved a Strategic Enforcement Plan (SEP) for Fiscal Years 2017 – 2021. This recently approved SEP updates the EEOC’s first SEP which spanned Fiscal Years 2013 – 2016. A complete version of the 2017 – 2021 SEP is available on the EEOC’s website.

In the updated SEP, the EEOC has identified six substantive area priorities—many of which reaffirm but more narrowly tailor the objectives of the 2013 – 2016 SEP:

1. Eliminating Barriers in Recruiting and Hiring

In reaffirming a commitment to eliminating discrimination in recruiting and hiring, the 2017 – 2021 SEP advocates a focus on “class based recruitment and hiring practices that discriminate” based on protected class status. The EEOC will explore in more detail any practice perceived to direct certain groups of employees into certain jobs disproportionately. Of particular interest will be application processes deemed to be restrictive (including online systems that may be inaccessible to persons with disabilities) and screening tools (e.g., pre-employment tests, background checks, medical questionnaires, etc.).

2. Protecting Vulnerable Workers

The EEOC will continue to focus on immigrant and migrant workers and underserved communities where workers often are not aware of their rights and their “work status, language, financial circumstances, or lack of work experience make them particularly vulnerable to discriminatory practices or policies.”

3. Addressing Selected Emerging and Developing Issues

The issues that the EEOC will be targeting are: (1) qualification standards and inflexible leave policies that adversely affect individuals with disabilities; (2) accommodations for pregnant employees under the Americans with Disabilities Act Amendments Act and the Pregnancy Discrimination Act.

4. Equal Pay Protection for All Workers

The EEOC intends to continue its focus on pay practices and systems that are discriminatory under the Equal Pay Act and Title VII. In addition, the EEOC will expand this review to encompass compensation systems that “discriminate based on any protected basis.” This expands the agency’s focus from gender-based pay disparities to systems that appear to discriminate based on any protected class status.

5. Preserving Access to the Legal System

Consistent with guidance issued under the 2013 – 2016 SEP covering pregnancy discrimination and retaliation, the EEOC will continue to challenge policies and procedures that preclude individuals from seeking the protections afforded by the EEOC or impede access to the EEOC and other (state and local) EEO agencies. The EEOC will continue to scrutinize overly broad waivers and mandatory arbitration provisions, employers that fail to properly maintain applicant and employee data required by EEOC regulations, and retaliation designed to discourage employees from exercising their rights.

6. Preventing Systemic Harassment

The EEOC will continue to look for ways to effectively eliminate harassment—one of the most frequent complaints within the workplace—particularly where evidence shows a pattern and practice of harassment within the workplace. Of particular interest to the EEOC will be cases in which a harassment claim attacks a policy, practice, or pattern of harassment. According to the SEP, strong enforcement coupled with monetary relief for victims and injunctive relief to prevent continued occurrences “is critical, but not sufficient.” The agency also will encourage training and outreach aimed at eradicating future violations.

In addition to the objectives in these six substantive area priorities, the EEOC intends to engage in coordinated efforts among its district offices to streamline investigations, exchange information and ideas, and coordinate efforts. To accomplish this, the agency is committed to a “targeted approach” where the agency efforts can have impact, an “integrated approach” according to which all EEOC offices are required to coordinate and collaborate their efforts, and “accountability” requiring the agency to meet the public’s expectations for enforcement of EEO laws.

What Should Employers Do Now?

The reaffirmation of many core SEP principles combined with some narrowing of substantive areas on which the EEOC will focus provides a good opportunity for employers to review their current policies and procedures.

• Review recruiting and hiring procedures to confirm that they remain accessible and objective. Employers that use online recruiting tools should confirm that their platforms are accessible to persons with disabilities. In addition, employers should review whether their pre-employment screening tools are job related, whether they disparately exclude applicants from certain jobs, and whether they direct applicants to only certain jobs.
• Consider whether any employment practices adversely affect vulnerable workers including those from underserved communities. Employers with worksites in geographic areas with populations of vulnerable workers or in underserved communities should consider proactive training for managers and supervisors on this issue as well as training for all employees to educate them on workplace rights (including instituting internal complaint procedures aimed at eliminating discrimination in the workplace).
• Review pay rates, pay bands, and actual pay to workers to confirm that any pay disparity is a result of legitimate business reason (e.g., length of service, level of education, industry experience) and not disparate based on protected class status. Our recent article, “Reducing the Risks of Pay Discrimination Claims: Employer Pay Equity Audits,” provides an overview on conducting such pay equity audits.
• Review employment agreements, including mandatory arbitration agreements, releases, waivers, separation documents, and any other policies that might affect an employee’s right to pursue a charge with the EEOC or other EEO agency.
• Be aware of the EEOC’s focus on systemic cases. Review policies and procedures that may lead to such a claim and confirm record retention policies to assure that applicant and employee data is properly maintained and accessible.

We will continue to report on any further developments in the EEOC’s enforcement initiatives on Ogletree Deakins’ Employment Law blog.