The Equal Employment Opportunity Commission (EEOC) is signaling employers that the agency is expanding its focus on emerging employment issues. And given the drastic change taking place in today’s workplace, the new priorities aren’t surprising, according to an attorney well-versed on the “gig economy” and other challenging employment issues. 
The EEOC recently announced its updated Strategic Enforcement Plan for fiscal years 2017-2021. The new plan continues the priorities outlined in the plan for 2013-2016 but adds two areas to the previous “emerging issues” priority. Those additions encompass:
- “issues related to complex employment relationships of the 21st century workplace,” specifically focusing on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy; and
- “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.”
Gig economy concerns
Michelle Lee Flores, an attorney with the Cozen O’Connor law firm in Los Angeles, says that because of a surge in the number of people working in nontraditional ways, employers may see the EEOC touching more areas it hasn’t been involved in before.
“The takeaway is that the EEOC is not necessarily the slow-moving beast, but is thinking about the things that are impacting the workplaces now,” Flores says. Previously, there was a brighter line between workers who were employees of an employer and those who were independent contractors. But because roles seem to be blending now, the line defining who falls in the EEOC’s enforcement area is no longer so bright.
In the past, people often would work as independent contractors for a short time while they were between jobs. Then they would return to a traditional employment relationship, but now many workers are staying in nontraditional jobs because of the number of workers needed for on-demand services, Flores says. So the EEOC now may be recognizing that because of the growing numbers of people in nontraditional jobs, more of them may be falling under the agency’s purview.
Quacks like a duck?
The changing employment landscape is blurring the lines between employees and those who might not fit the definition of employee. So now, just because of sheer numbers, there are likely to be more discrimination claims coming from people working as independent contractors who are in the blurred area, and that blurred area presents more of an opportunity for the EEOC, Flores says.
In deciding if a worker is an employee of an employer, it may seem that a worker doesn’t exactly quack like a duck, “but it kind of quacks,” Flores says. “It doesn’t exactly walk like a duck, but it kind of walks like one.” The gig economy has a lot of truly independent contractors, but there also are a lot of workers on a blurred line, she says.
“Who’s to say, … in five years, are they going to say, ‘Gee does this workforce have some new rules to it?’” Flores says. A third category may result: employee, independent contractor, “and something else,” she says, adding that she’s seen reports that 40 percent of workers will be participating in the gig economy within the next five to seven years.
Backlash discrimination
The updated enforcement plan also includes a focus on backlash discrimination against those who are Muslim or Sikh; persons of Arab, Middle Eastern or South Asian descent; and persons perceived to be members of those groups. The EEOC says this priority is necessary because “tragic events in the United States and abroad have increased the likelihood of discrimination against these communities.”
Flores says employers should react to the EEOC’s priority by doing a self-check. “The EEOC folks are seeing this [kind of discrimination] happening,” so it is gaining importance, she says.
At a minimum, employers may find unconscious bias going on in their workplaces, Flores says, so employers should “take some responsibility to do something in an affirmative way” to fight bias. The “scare factor” for employers is that the EEOC will be looking for backlash discrimination, she says, and that’s why employers need to do self-checks to address problems before the EEOC comes looking for them.
“If the report talks about it, it’s going on in numbers that the EEOC is saying, as a body, they’ll look for,” Flores says.
New plan
In addition to the new priorities identified for 2017-2021, the EEOC says the new plan continues the priorities in the previous plan:
- Eliminating barriers in recruitment and hiring;
- Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination;
- Addressing selected emerging and developing issues;
- Ensuring equal pay protections for all workers;
- Preserving access to the legal system; and
- Preventing systemic harassment.