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EEOC >'s Expanding Priorities

The federal agency will renew its focus on protecting contingent workers and employees perceived to be Muslim or Arab.

Wednesday, November 2, 2016
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Reaffirming its commitment to "advancing equal opportunity and freedom from discrimination in the workplace," the Washington-based Equal Employment Opportunity Commission recently unveiled its Strategic Enforcement Plan for fiscal years 2017 to 2021. The plan builds on a prior SEP, which guided < EEOC > activity from 2013 to 2016.

The new SEP retains the six broad enforcement priorities laid out in the previous plan: eliminating barriers in recruitment and hiring; 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 sexual harassment.

In that sense, it's essentially "more of the same," says J. Randall Coffey, a partner in the Kansas City, Mo.-based office of Fisher & Phillips. However, he says, there are two significant additions to the SEP, and HR executives would be wise to pay close attention to them and consider their potential impact within the context of their business.

Recognizing the increasingly non-traditional nature of employment, the < EEOC > has set its sights on "workplace civil-rights protections" relating to temporary workers, staffing agencies, independent contractors and gig workers. "What the < EEOC > is essentially saying is, 'Regardless of how you, the employer, classify your relationship, whether it's staffing agency, temporary employment, or independent contractor, if these individuals are under your control, performing work for you on a daily basis similar to the rest of your workforce, [then] they are going to be treated under < EEOC > laws as your employees,' " says Stephanie Lewis, office managing principal of the Greenville, S.C., office Jackson Lewis and co-chair of the firm's pay-equity resource group.

Traditionally, Lewis says, organizations have not considered contingent workers or temps to be employees. Should a harassment or discrimination complaint arise, she says, HR's argument has been, "That's not our problem. That's not our employee." With the addition of complex employment relationships to the < EEOC >, however, the agency is signaling it is not going to "blindly accept" classifications that would stop it from being able to enforce rights for this population. Given the increased scrutiny of such relationships, Lewis says, "There has to be a real partnership with the staffing agency and the client employer in making sure that the complaint is thoroughly investigated [and] addressed, and [that] action is taken because the employer, the client site, will be held to that legal obligation by the < EEOC >."

In the aftermath of the terror attacks in Paris and San Bernardino, the < EEOC > became increasingly concerned about workplace discrimination 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. A similar awareness occurred following the attacks on America on Sept. 11, 2001, says Barry Hartstein, co-chair of the EEO & diversity practice group at Littler Mendelson in Chicago.

"This is a reaction to current events, historical events and the prejudice that has seeped into our workplaces against Muslims and people of Arab descent," says Lewis. "There are inappropriate comments being made, jokes being told, and stereotyping that's happening all around the idea of what's happening in the world."

Lewis recommends companies expand their diversity, sensitivity and anti-harassment training to include this specific population and take quick action in the instance of a complaint or inappropriate situation that comes to light.

According to Jenny Yang, chair of the < EEOC >, the updates to the SEP represent increased emphasis on substantive areas where the agency will be taking a much closer look.

"This SEP builds on the < EEOC >'s progress in addressing persistent and developing issues by sharpening the agency's areas of focus and updating the plan to recognize additional areas of emerging concern," says Yang. "The solid foundation laid by the Commission's first SEP positions the < EEOC > to concentrate on coordinating strategies and solutions for these core areas to ensure freedom from workplace discrimination."

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While Lewis doesn't expect the updates to result in any new rules with regard to the Arab and Muslim populations, she does anticipate that the agency will publish updated guidance documents for avoiding backlash discrimination. Meanwhile, Coffey believes rules may be issued at some point as they pertain to "joint employer" situations, which are becoming increasingly common due to the prevalence of unconventional employment relationships. Coffey also believes the < EEOC > is likely to issue rules pertaining to the use of data-driven screening tools for making hiring and employment decisions, another concern cited in the new SEP.

"Companies need to be careful to ensure that whatever screening tools they are using have themselves been screened to ensure they don't have adverse impacts on particular demographic groups," says Coffey. "That will draw < EEOC > scrutiny for certain."

Generally speaking, employers should endeavor to avoid becoming "the test case of the agency or the plaintiff's bar," says Hartstein. Taking this latest iteration of the SEP seriously will help them do just that, he says.

"The < EEOC has given us very clear signals of the direction the agency is going [in]," says Hartstein. "HR is going to need to read it very carefully and say, 'Where should I start paying closer attention to our personnel policies, and practices and procedures, so I can stay ahead of the curve?' "

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