On October 17, 2016, the Equal Employment Opportunity Commission
(EEOC) approved its updated Strategic Enforcement Plan (SEP) for Fiscal
Years 2017-2021. The SEP reflects the EEOC's "continued
commitment to focus efforts on those activities likely to have
strategic impact in advancing equal opportunity and freedom from
discrimination in the workplace." The six substantive
priorities largely remain the same from the previous 2012 SEP and
include (1) eliminating barriers in recruitment and hiring; (2)
protecting vulnerable workers, including immigrant and migrant
workers, and underserved communities from discrimination; (3)
addressing selected emerging and developing issues; (4) ensuring
equal pay protections for all workers; (5) preserving access to the
legal system; and (6) preventing systemic harassment.
In addition, the updated SEP identifies two new emerging areas
of focus—(1) complex employment relationships in the
on-demand economy which deals less with traditional employment
relationships and more with contract workers, and (2) backlash
discrimination against individuals who are, or appear to be, Muslim
or Sikh or of Arab, Middle Eastern or South Asian descent.
The rise of staffing agencies, temporary workers, and
independent contractors has the Commission paying close attention
to the application of civil rights protections in that setting as
part of its focus on "issues related to complex employment
relationships and structures in the 21st century workplace."
This enhanced focus on how workers are employed should prompt
companies to carefully analyze their relationships with temporary
workers, staffing agencies and independent contractors to ensure
compliance with all federal laws.
An additional component to the 21st century workplace the EEOC
will scrutinize is the use of technology in recruitment and hiring
decisions. The Commission is already moving forward with evaluating
issues in this landscape as noted by its October 13 meeting discussing the potential
discrimination of using Big Data in employment decisions. This is
one example of how the EEOC intends to focus on interpreting and
applying anti-discrimination laws in the increasingly
Related to recent world events, the Commission states it will
address the "discriminatory practices 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, arising from backlash against them." This objective is
straightforward, however, employers should be mindful of actions
that can be perceived as discriminatory. As always, best practices
include uniform application of company policies and detailed
The SEP also references the EEOC's plan to address pay
disparities in general. The Commission's previous equal pay
focus has largely centered on gender-based pay discrimination. In
the updated SEP, the Commission states that it "extends its
equal pay priority to explicitly reach all workers."
Accordingly, employers should review their pay practices now to
correct any problematic pay disparities among its employees or be
prepared to defend those disparities.
Employers should expect EEOC activity in these areas to only
increase. Having been provided notice of the Commission's
primary areas of focus for the coming years, prudent employers
should review any policies and practices that fall under the
identified categories and seek legal counsel for any concerns that
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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