Thursday, October 20, 2016

EEOC Announces Enforcement Priorities

On Monday, the EEOC announced its updated strategic enforcement plan for fiscal years 2017 through 2021. The updated plan contains the organization’s priorities and strategies for enforcing laws and regulations on equal opportunity and freedom from discrimination in the workplace. The EEOC reaffirmed six priorities identified in its previous strategic plan, released in 2012:
  • Eliminating barriers in recruiting and hiring, including diversity in technology and the increasing use of data driven screening tools;
  • 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.
These priorities have been refined to “recognize additional areas of emerging concern.”  Most notably, the EEOC will put particular focus on two additional areas:
  • Issues related to “complex employment relationships in the 21st century workplace”
  • Backlash discrimination against those who are Muslims or Sikh, or individuals of Arab, Middle Eastern, or South Asian descent, and persons perceived to be members of these groups.
So what does the EEOC mean by “complex employment relationships in the 21st century workplace?” That’s the “gig” economy, within which employers reject traditional employment relationships in favor of leased, temporary, or contract workers. Industries that rely heavily on independent contractors, such as Uber and Lyft, and those that rely on temporary workers and staffing agencies may find themselves the subject of much closer scrutiny. As we have noted in earlier posts, use of temporary and leased employees and reliance on independent contractors can provide benefits but also pose legal risks.
The EEOC says it intends to focus on clarifying the employment relationship and will study how to apply workplace protections against discrimination to temporary workers, staffing agencies, and independent contractor relationships in the on-demand economy. Some commentators have argued that increased enforcement and litigation will drive the gig economy into the ground.
The Commission’s second priority—backlash discrimination—reflects the likelihood of workplace bias against and harassment of individuals perceived to be associated with the perpetrators of tragic events in the United States and abroad.  Complaints of discrimination based on Middle Eastern ethnic origin and religion have increased markedly since the attack on the World Trade Center in 2001, and the EEOC expects that trend to continue.
Posted by Laura Bartlow