Employment Practices in 2018 and Beyond

Whether you know a lot or a little about the United States Equal Employment Opportunity Commission — the federal agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee based on race, color, religion, sex, national origin, age, disability, or genetic information — now is a great time for business leaders to learn more as we look ahead to the coming years under the EEOC’s 2017-2021 Strategic Enforcement Plan.

The Strategic Enforcement Plan, or SEP for short, builds on the EEOC’s previous SEP, which guided the agency’s actions through 2016. Understanding that, like all government agencies, the EEOC is overburdened and limited by a budget, the SEP shows businesses the areas the agency considers to be priorities and reflects how the EEOC will approach a variety of discrimination and harassment issues for the foreseeable future.

By way of background, the EEOC comprises five commissioners. With the Trump administration’s recent nominations, the commission will soon have a Republican majority. This shift will undoubtedly result in a change in the way the EEOC carries out the SEP, although the priorities will remain in effect.

The commission receives nearly 200,000 inquiries each year from employees interested in filing a charge of discrimination. In an effort to make the process of filing a charge more accessible, on Nov. 1, 2017, the EEOC rolled out its Public Portal, an online filing portal through which employees can sign and file a charge of administration that an EEOC representative prepares on the employee’s behalf.

For those familiar with the previous SEP, a review of the 2017-21 SEP will bring no surprises. That’s because the six areas the SEP identifies as priorities for this new five-year period essentially mirror those from the previous SEP.

What is new is the EEOC’s focus on the modern workplace, which often includes non-traditional work relationships and some issues we have seen in recent headline news. Here is an overview of the priorities:

1. Elimination of barriers in recruitment and hiring
The EEOC is focusing on hiring and recruiting practices that keep certain protected groups from securing jobs. Those practices include background checks, online applications that are not accessible to disabled applicants, and medical questionnaires that may unfairly keep disabled workers from receiving employment offers.

2. Protecting vulnerable workers, including immigrant and migrant workers and underserved communities, from discrimination
Continuing its commitment to help workers who may be unaware of their rights under the equal employment laws, the EEOC will identify vulnerable workers, including members of Native American tribes, and educate and assist those employees to ensure they are on equal footing with other workers.

3. Addressing selected emerging and developing issues, including “backlash” discrimination
Somewhat a catchall, this priority gives the EEOC flexibility to monitor trends in the law and changing practices.

But this topic expressly identifies the following issues: pregnancy-related discrimination, discrimination against LGBT workers, and discrimination against workers who are Muslim, Sikh, or of Arab, Middle Eastern, or South Asian descent arising from “backlash” from recent tragic events.

This topic also encompasses the “increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand, or ‘gig,’ economy.”

4. Ensuring equal pay for all
If the EEOC’s activity in 2017 is any indication, and it’s safe to say it is, we will see continued activity as the agency tries to close pay gaps based on gender, race, ethnicity, age, and disability.

Although in August the White House Office of Management and Budget suspended the pay-data collection provisions of the revised EEO-1 form, which would have required many employers to provide comprehensive compensation data starting in March 2018, the EEOC continues to profess its commitment to strong enforcement of equal pay laws.

5. Preserving access to the legal system
Another area where we saw the EEOC flex its muscle this past year, this area targets what the agency calls “overly broad” waivers, releases, and mandatory arbitration provisions, among other issues.

6. Preventing systemic harassment
Noting that harassment claims account for more than 30 percent of all charges employees file with the EEOC each year, the agency commits to strong enforcement, training, and outreach to prevent future harassment.

In 2015, the EEOC formed a Select Task Force on the Study of Harassment in the Workplace, co-chaired by Commissioners Chai Feldblum and Victoria Lipnic, to examine ways to prevent and address various forms of workplace harassment.

The task force comprises 16 members from around the country, including representatives of academia and social science, lawyers on both the plaintiff and defense sides, employers and employee-advocacy groups, unions, and others.

The EEOC emphasizes the importance of compliance training, noting that a “holistic harassment-prevention effort provides training to employees regarding an employer’s policy, reporting systems, and investigations.”

Takeaways for Employers
All employers who are subject to the federal equal employment laws (typically, those with 15 or more employees) are affected by the SEP. But those in the high-tech industry or gig economy are likely to feel the most pressure by the EEOC’s actions in the coming years.

The SEP discusses a lack of diversity in the technology sector, noting the commission will take steps during the five-year period to address barriers in recruitment and hiring in the industry. Of particular concern to the EEOC is the increasing use of data-driven screening tools.

In addition to increased scrutiny in the high-tech industry, the SEP also reflects the EEOC’s focus on increasingly complex employment relationships. No one can ignore that the workforce of today does not mirror the workforce from 30, 20, or even five years ago.

More and more frequently, employers choose to fill their workforce needs through staffing agencies, and studies show many workers choose to avoid a traditional employment relationship in favor of flexible work arrangements or gigs.

The EEOC, like its sister agencies, is stepping up its efforts to protect workers whom the agency believes are employees and therefore subject to federal employee protections, rather than contractors or freelancers.

The SEP offers a preview into the EEOC’s focus through 2021. Staffing agencies and companies that supply workers “on demand” should pay particular attention to the SEP, as should technology companies and businesses that regularly use temporary workers, independent contractors, or freelancers. BW

Janet Hendrick is a partner in the office of employment law firm Fisher Phillips. She can be reached at jhendrick@fisherphillips.com. www.fisherphillips.com