Why the EEOC’s Updated Strategic Enforcement Plan Is a “Must Read” for Employers

Why the EEOC’s Updated Strategic Enforcement Plan Is a “Must Read” for Employers

The Equal Employment Opportunity Commission (EEOC) recently published its latest Strategic Enforcement Plan. Given that the agency has traditionally been very diligent in targeting its resources to the stated objectives, New York and New Jersey employers should review the new plan and make any necessary compliance changes.“This SEP builds on the EEOC’s progress in addressing persistent and developing issues by sharpening the agency’s areas of focus and updating the plan to recognize additional areas of emerging concern,” said EEOC Chair Jenny R. Yang. “The solid foundation laid by the Commission’s first SEP positions the EEOC to concentrate on coordinating strategies and solutions for these core areas to ensure freedom from workplace discrimination,” she added. 

The EEOC’s new Strategic Enforcement Plan, which covers Fiscal Years 2017-2021, reconfirms several priorities that have been on the agency’s radar for the past several years. They include preventing systemic harassment, ensuring equal pay protections for all workers, and eliminating barriers in recruitment and hiring. While these are still important, employers should pay most attention to the emerging issues added this year.

Discrimination Caused by Muslim Backlash

The EEOC will focus on backlash discrimination 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. As the agency noted in a press statement, “tragic events in the United States and abroad have increased the likelihood of discrimination against these communities.”

In guidance issued earlier this year regarding Muslim backlash in the workplace, the EEOC stated: “In the aftermath of major attacks, workplace conversations and interactions related to these events may occur.  In an atmosphere of heightened concern and apprehension, some employees may be more likely to make unguarded remarks, and others may be more afraid of harassment.” Accordingly, the agency encouraged employers to be proactive in such situations and to publicize (or re-publicize) their anti-harassment and anti-retaliation policies and procedures. 

Complex Employment Relationships

The EEOC’s Strategic Enforcement Plan also targets legal issues related to complex employment relationships in the 21^st century workplace, focusing specifically on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy. Much like other state and federal regulators, the EEOC appears concerned that the rise of the so-called “gig” economy may erode the legal protections afforded to traditional workers. The new focus also suggests that the EEOC may seek to impose liability against staffing agencies using a joint employer theory.

Using Big Data to Screen Job Candidates

The EEOC is also examining how employers are using big data tools in the hiring and recruitment processes to determine if they may lead to discrimination. In response to a recent EEOC-sponsored panel discussed on the topic, EEOC Chair Jenny R. Yang acknowledged that “[b]ig data has the potential to drive innovations that reduce bias in employment decisions and help employers make better decisions in hiring, performance evaluations and promotions. However, she also noted that “it is critical that these tools are designed to promote fairness and opportunity, so that reliance on these expanding sources of data does not create new barriers to opportunity.”

Do you have any questions about the EEOC’s updated Strategic Enforcement Plan? Would you like to discuss the matter further? If so, please contact me, Sean Dias, at 201-806-3364.