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EEOC issues fair warning to employers in its 2017-21 SEP

by Michael Barnsback

In September 2012, the Equal Employment Opportunity Commission (EEOC) announced its 2013-16 Strategic Enforcement Plan (SEP). The SEP provided employers a clear road map of the EEOC’s enforcement priorities for the coming years. True to its word, the agency focused its enforcement efforts on the six substantive areas identified in the SEP. Charges raising one of the priority issues received heightened attention from EEOC investigators. The Washington Field Office routinely initiated the investigation of SEP issues without permitting the parties to engage in mediation, and decisions by EEOC regional offices to pursue litigation were based on the guidance contained in the SEP.

In October 2016, while most of us were focused on the presidential campaigns, the EEOC released its SEP for 2017-21. The new SEP reemphasizes the original six substantive areas and refines several of them. Here’s what you can expect from the EEOC in the next four years.

EEOC’s 6 substantive areas of enforcement
Eliminating barriers in recruiting and hiring. This area focuses on discriminatory class-based recruitment and hiring practices, such as exclusionary policies and practices, channeling and steering applicants into specific jobs based on their protected status, job segregation, and restrictive application processes. You should pay particular attention to use of “data-driven selection devices,” which is one of the refinements identified in the new SEP. The use of background checks, which the EEOC contends has a disproportionate impact on African-American and Latino applicants, also remains an enforcement priority.

Additionally, the new SEP indicates that the EEOC will focus on a perceived lack of diversity in “certain industries and workplaces[,] such as technology and policing.” Technology companies and police departments should be warned: The EEOC will be examining your hiring and recruiting practices.

Protecting vulnerable workers. The EEOC will continue to work to protect vulnerable workers, including immigrant and migrant workers as well as people perceived to be in these groups, and members of underserved communities. The agency intends to use its resources to identify vulnerable workers and underserved communities, and address issues of local concern.

Addressing selected emerging and developing issues. This is the area where the EEOC has expanded the traditional protections of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) and advocated for certain protected groups. The new SEP identifies five emerging and developing issues:

Qualification standards and inflexible leave policies that discriminate against individuals with disabilities. This is not a new issue. The EEOC has long targeted inflexible leave policies. To be prepared for the EEOC’s continued focus on this issue, you should become familiar with the guidance provided in the agency’s May 9, 2016, document, “Employer-Provided Leave and the Americans with Disabilities Act.”

Accommodating pregnancy-related limitations. Again, this isn’t a new issue. On June 25, 2015, the EEOC published “Enforcement Guidance on Pregnancy Discrimination and Related Issues,” which is another document that you should become familiar with.

Protecting LGBT individuals from discrimination based on sex. This priority from the previous SEP continues to be an enforcement priority going forward. On July 8, 2016, the EEOC released a fact sheet providing a summary of the cases involving LGBT issues it has pursued through litigation as part of its SEP. At least for the near future, you can expect the agency to continue its enforcement efforts in this priority area.

Temporary workers, staffing agencies, and independent contractor relationships. According to the EEOC, its efforts will be focused on clarifying the employment relationship and “the application of workplace rights.” In other words, the agency is looking to expand liability for discriminatory practices beyond the traditional employer-employee relationship.

Discriminatory practices against individuals who are Muslim or Sikh, or individuals of Arab, Middle Eastern, or South Asian descent, and individuals who are perceived to be members of these groups. Although this is a new area of focus in the SEP, it isn’t a new area of enforcement concern for the EEOC. On December 13, 2015, the EEOC published “Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are or Are Perceived to be Muslim or Middle Eastern.”

Ensuring equal pay protections for all workers. Equal pay continues to be an enforcement priority, but the new plan expands the focus to employees in all protected categories, not just the disparity between men and women. In a separate announcement in September 2016, the EEOC advised employers that beginning in 2018, they will be required to submit summary pay data by race, ethnicity, and sex with the standard EEO-1 report. That data obviously will be used by the EEOC in its equal pay enforcement efforts.

Preserving access to the legal system. The EEOC will continue to focus on policies and practices that have the effect of limiting substantive rights, discourage or expressly prohibit employees from exercising their rights, or impede the agency’s investigative or enforcement efforts. Such policies include overly broad waivers and releases that limit rights, or deter or prohibit employees from filing charges or participating in investigations. The EEOC added “mandatory arbitration provisions” to the new SEP. It appears that the EEOC will join other federal agencies in trying to prevent employers from exercising their rights under the Federal Arbitration Act (FAA).

Preventing systemic harassment. In the new SEP, the EEOC comments that “harassment continues to be one of the most frequent complaints in the workplace.” The enforcement priority involves systemic cases, particularly based on a policy, practice, or pattern of harassment.

The way I see it . . .
The 2017-21 SEP provides employers clear notice that for the next four years, the EEOC will devote its resources to enforcement in the six substantive areas discussed above. The EEOC has published guidance to aid employers with compliance in many of the enforcement priority areas. You will be well served if you carefully review the new SEP and the associated guidance documents, and focus your efforts on compliance in those areas.

Some of you may be wondering, What about the election? There may be some changes in the EEOC’s enforcement priorities, particularly in the fourth priority, dealing with emerging and developing issues. However, don’t expect the agency to make wholesale changes to the SEP. One thing you can count on from Washington is that the EEOC will remain focused on its six substantive areas of enforcement for the next four years.

Michael Barnsback is an attorney with O’Hagan Meyer, practicing in the firm’s Richmond, Virginia. He also is an Adjunct Professor of Labor Law at the Antonin Scalia Law School at George Mason University. He may be contacted at