Diversity & Inclusion

The Changing Landscape of Employment Discrimination Prevention in 2023

Change is in the air: The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) are adjusting their standard policies and operations to reflect the realities of the current labor market. For example, the EEOC and OFCCP must ensure that emerging artificial intelligence (AI) technologies don’t lead to employment discrimination and must also create thorough employer guidelines for avoiding AI-based hiring biases.

That said, federal agencies change slowly. The EEOC and OFCCP are laser-focused on past areas of concern, like potential discriminatory compensation practices and expanding the scope of OFCCP compliance requirements. The EEOC expanded the range of employees protected by the “vulnerable workers” designation; this category now includes people with arrest or conviction records and workers with limited literacy or English proficiency. Employers rarely have effective internal anti-employment discrimination monitoring procedures, so it’s essential they adhere to established EEOC and OFCCP requirements.

What Does it Mean to Be an Equal Opportunity Employer in 2023?

Title VII of the Civil Rights Act dictates that most employers must recruit, promote, and compensate workers according to merit and without regard for sex (including pregnancy, sexual orientation, and gender identity), race, color, religion, or national origin. This may sound simple enough, but it can be challenging for employers to implement a consistent equal opportunity hiring plan.

For instance, many employers actively monitor their hiring practices for potential discriminatory impact based on race/ethnicity by comparing the selection rates of whites and people of color in the aggregate but not necessarily by individual race/ethnicity. And employers hardly ever test for potential discrimination based on the intersection of sex and race (for example, Hispanic women).

Similarly, both the EEOC and the OFCCP are currently interested in potential discrimination based on particular disabilities in addition to an employer’s treatment of its disability community as a whole. But under most circumstances, the Americans with Disabilities Act (ADA) prohibits employers from asking about disability status and strictly regulates the rare instances in which an employer can specifically inquire into an employee’s medical issues or history, not to mention strict rules regarding how the employer can use an employee’s medical information.

Employers need more detailed information to create more effective discrimination prevention measures but only with EEOC guidance, as that information can easily be misused.

Upcoming Changes to EEOC and OFCCP Regulations

Pending Supreme Court decisions in two cases regarding affirmative action in higher education will likely lead to significant changes. For example, the federal government may abandon the current distinction between the “good kind” of affirmative action (preventive) and the “bad kind” (corrective) and simply concede that “affirmative action” is a singular category referring to the intentional use of prohibited characteristics when making decisions (e.g., admissions decisions, employment decisions, etc.).

Typical employment models include instructing new hires on company policies and requiring them to attest they have read and understood all of those policies. Both the OFCCP and the EEOC prefer employers shift to a proactive, preventive approach, as nipping potential issues in the bud before they germinate into problematic situations is the best-case scenario. Whether that translates into a better working environment for employees rests on employers’ core values and its dedication to preserving those values.

At the very least, having an internal equal employment opportunity regulator on staff should signal to employees that there’s someone on-site they can rely on to look out for their best interests. After all, every discrimination claim that’s resolved before becoming a major problem saves the employer time, money, and other resources. While it’s difficult to quantify, strong nondiscrimination practices pay big dividends.

3 Recommended Equal Employment Opportunity Best Practices

In today’s business world, compliance with employment laws and regulations is a critical component of any successful organization. Compliance can help mitigate risk, avoid legal issues, and foster a positive work environment. However, compliance isn’t just a matter of checking boxes and following rules. Here are some key takeaways to keep in mind to ensure your organization is compliant and employee-centered.

1. Remember to keep a human touch.

It’s essential to value your employees as individuals, not as mere cogs in a machine. Say a specific employee is suddenly having performance issues. Instead of disciplinary action, the organization’s first response should be to ensure the employee is mentally and physically healthy and to offer assistance. In the event of an employment discrimination complaint, a history of maintaining an employee-centered workplace will go a long way toward ensuring a smooth investigation.

2. Practice proper resource allocation.

Keeping pace with existing and new legal and regulatory enforcement is hard enough. Developing and implementing new tools and procedures to accommodate changing legal and regulatory enforcement schemes takes resources. Your organization must commit these necessary resources to your compliance team to ensure proper standards are being met.

3. Be proactive before problems arise.

The EEOC’s new focus on low-wage workers and sex and race combination discrimination should only be concerning if your company doesn’t prioritize worker treatment. A well-run company stays ahead of the federal regulatory agencies through constant self-evaluation and self-correction.

Now Is the Time to Ensure OFCCP Compliance

Government regulations frequently carry a negative connotation, but these nondiscrimination laws weren’t implemented as “gotcha” attempts to call employers out on technical violations. Rather, EEOC and OFCCP requirements aim to protect employees from unfair, unjust, and unethical treatment.

Don’t conceptualize federal equal employment opportunity laws as a hoop to jump through or a pointless exercise in performative actions like displaying the right posters in the breakroom. Instead, think of them as holding your organization accountable for potential or actual mistreatment of yourself and your fellow human beings.

Matt Nusbaum is the director of the BCG Institute for Workforce Development (BCGi). Nusbaum has more than 9 years of experience as a practicing attorney and is one of the nation’s leading authorities on affirmative action. He consults federal contractor employers on affirmative action and nondiscrimination requirements enforced by the U.S. Department of Labor, as well as those required by federal, state, and local enforcement agencies.

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