The Equal Employment Opportunity Commission (EEOC) recently revealed its Strategic Enforcement Plan for 2017-2021. Of course, this Plan was developed before the election of Donald Trump as President. Thus, the information contained in the Plan could soon become moot, or at the very least, stale. However, seeing what the EEOC recently noted as high priority areas is instructive. Whether the Plan will be dramatically or only slightly revised remains to be seen.
The Commission’s top nationwide substantive priorities include:
- eliminating barriers in recruitment and hiring;
- protecting vulnerable workers, including immigrant and migrant workers, and undeserved 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.
1) Eliminating Barriers in Recruitment and Hiring
This priority focuses on class-based recruitment and hiring practices including restrictive application processes and screening tools that discriminate against or disproportionately impact racial, ethnic and religious groups; older workers; women; and people with disabilities. The EEOC will likely focus on the recruitment and hiring practices of professions that lack diversity in their work forces. For example, in May 2016 the United States District Court for the Western District of Missouri found that New Prime Trucking, Inc. used discriminatory hiring practices by requiring that female truck driver applicants only be trained by females.1 The EEOC filed suit against New Prime in 2011 because the policy forced female trainees to wait extended periods of time for a female trainer due to the small number of female trainers employed by the company. This practice resulted in most female applicants being denied employment, and this year the company agreed to pay over $3 million in lost wages and damages to 64 female applicants who were denied job opportunities due to the discriminatory practice.
2) Protecting Vulnerable Workers, Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination
The Commission will focus on segregation, harassment, trafficking, pay, retaliation and other policies against vulnerable workers, including immigrants and migrant workers. These workers can be particularly vulnerable due to language barriers, financial circumstances and lack of work experience in the United States.
3) Addressing Selected Emerging and Developing Issues
The focus of this substantive area priority will shift over time based on the EEOC’s research, data collection and receipt and adjudication of charges over the next five years. Some of the current issues that fall within this category include: qualification standards and inflexible leave policies that discriminate against individuals with disabilities; accommodating pregnancy-related limitations under the Americans with Disabilities Act (ADA); protecting LGBT employees from discrimination based on sex; and addressing discriminatory practices against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent arising from tragic events in the United States and abroad. The EEOC has already made strides in some of these areas this year. For instance, the Commission has recently been pushing for sexual orientation claims to be included under Title VII’s protections against sex discrimination. In a big win for the EEOC on November 4, 2016, Judge Bissoon in the Western District of Pennsylvania ruled that discrimination based on sexual orientation constitutes sex stereotyping prohibited by law after the EEOC filed suit against a medical center on behalf of a former employee who quit his position after allegedly being subjected to harassment, anti-gay epithets and a hostile work environment by his manager.2
4) Ensuring Equal Pay Protections for All Workers
This year the EEOC issued a new rule for federal contractors and subcontractors with 100 or more employees that requires employers to provide a summary of data on wages paid to their employees categorized by gender, race and ethnicity in their annual EEO-1 reports. The EEOC will use this data to assess discrimination complaints and identify pay disparities that may warrant additional examination. Moving forward, the EEOC will continue to focus on compensation systems that discriminate based on sex, but the EEOC will also focus on pay discrimination based on race, ethnicity, age, disability and other protected groups.
5) Preserving Access to the Legal System
The EEOC will focus on policies or practices that limit substantive rights, discourage or prohibit individuals from exercising their rights under employment discrimination statutes or impede the EEOC’s investigative or enforcement efforts. Specifically, the EEOC will target:
- overly broad waivers, releases and mandatory arbitration provisions;
- employer’s failure to maintain and retain applicant and employee data and records required by EEOC regulations; and
- significant retaliatory practices that effectively dissuade others in the workforce from exercising their rights.
6) Preventing Systemic Harassment
Harassment makes up over 30 percent of charges filed with the EEOC based on sex, race, disability, age, national origin and religion in order of frequency. The EEOC will continue to enforce its anti-harassment policies through injunctive and monetary relief, but also encourage employers to implement training and prevention programs to deter harassment in the workplace.
Employers should be familiar with this list of the EEOC’s substantive area priorities because the EEOC allocates the most time and resources to handling charges with the greatest strategic impact. The EEOC has already made strides in developing the law in several of these substantive priority areas this year, and looks to continue that trend in the coming years.
1 (EEOC v. New Prime Trucking, Inc. Civil Action No.6:11-CV-03367 MDH).
2 (EEOC v. Scott Medical Health Center PC, Civil Action No. 2:16-cv-00225-CB).