By Kathleen Jennings (firstname.lastname@example.org)
On October 17, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) announced a new four-year strategic enforcement plan (SEP). In December 2012, the EEOC implemented its previous SEP, which established substantive area priorities and set forth strategies to integrate all components of EEOC’s private, public, and federal sector enforcement to have a sustainable impact in advancing equal opportunity and freedom from discrimination in the workplace. The EEOC adopts the SEP for Fiscal Years 2017-2021 to set forth its 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 EEOC defines strategic impact as a significant effect on the development of the law or on promoting compliance across a large organization, community, or industry. This focus on strategic impact requires EEOC to shift attention in certain areas and to reduce resources spent on activities that may not have strategic impact.
The EEOC’s substantive area priorities for Fiscal Years 2017-2021 are:
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.
6. Preventing Systemic Harassment.
The categories listed above a very broad, so it hard to determine from this list what specific issues the EEOC may target for enforcement and litigation. However, one of the more interesting items is No. 3—Addressing Selected Emerging and Developing Issues. The following issues currently fall within this category:
a) Qualification standards and inflexible leave policies that discriminate against individuals with disabilities;
b) Accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act (PDA);
c) Protecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex;
d) Clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy; and
e) Addressing 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 from tragic events in the United States and abroad.
The last two items on this list—involving increased scrutiny regarding temporary workers, staffing agencies, independent contractor relationships and the on-demand or “gig” economy and “backlash discrimination” based on religion, race or national origin against Muslims or Sikhs or people of Arab, Middle Eastern or South Asian descent — are new additions to the EEOC’s enforcement priorities.
The EEOC has become more active in filing litigation in recent years. These new enforcement priorities offer some insight into the types of cases the EEOC is likely to target for litigation.
Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and also provides training and counseling to employers in employment matters. She can be contacted at email@example.com.
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