EEOC recently published its Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021, in which it outlines the areas in which it intends to focus its strategic litigation and enforcement activities in the coming years. Not surprisingly, the EEOC indicates that it intends to expend significant resources on understanding and protecting temporary employees and members of the gig workforce.
As described in the SEP, EEOC’s substantive priorities for Fiscal Years 2017-2021 are:
- Eliminating Barriers in Recruitment and Hiring. EEOC states its intent to focus on “class-based” recruitment and hiring practices that discriminate against those in protected categories. The practices that will be targeted include (among other things), channeling/steering individuals into specific jobs based on their status in a particular group, restrictive application processes including on-line systems that are inaccessible to individuals with disabilities, and screening tools, such as background checks that disproportionately screen out members of certain minority groups. The EEOC also highlights the “growth of the temporary workforce, the increasing use of data-driven selection devices, and the lack of diversity in certain industries and workplaces such as technology and policing” as areas of particular concern.
- Protecting Vulnerable Workers, Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination. The EEOC indicates its intent to focus on job segregation, harassment, trafficking, pay, retaliation and other policies and practices against immigrant and migrant workers, as well as members of Native American tribes, among other underserved communities.
- Addressing Selected Emerging and Developing Issues. The EEOC intends to focus its resources on issues including inflexible leave policies that may negatively impact individuals with disabilities; protecting LGBT people from discrimination; clarifying employment relationships and the application of civil rights protections to temporary workers, employees of staffing agencies, independent contractors, and the on-demand (gig) workers; addressing discrimination directed at persons who are Muslim or Sikh, or of Arab, Middle Eastern or South Asian descent.
- Ensuring Equal Pay Protections for All Workers. the EEOC announced its intention to continue to focus on gender-based compensation disparities, as well as broadening its focus to disparities based on other protected categories.
- Preserving Access to the Legal System. the EEOC intends to target “overly broad waivers, releases, and mandatory arbitration provisions.”
- Preventing Systemic Harassment. The EEOC intends to continue to litigate issues of systemic harassment, and to seek “appropriate” monetary and injunctive relief. Further, the EEOC intends to make a “concerted effort to promote holistic prevention programs, including training and outreach,” to deter violations.
Whether the EEOC will be able to influence change in these areas remains to be seen; in light of the recent election results, the EEOC may find itself struggling to find the funding necessary to broaden the scope of its enforcement efforts.