On October 17, 2016, the Equal Employment Opportunity Commission (EEOC) issued its Strategic Enforcement Plan for Fiscal Years 2017-2021 (SEP). The SEP outlines the areas in equal employment enforcement on which the agency will focus during the next four years. The EEOC views the targeted areas as likely to have a significant effect on the developing law or promoting widespread compliance. While it is unclear what effect a new administration’s agenda may have on the EEOC’s plans, the SEP provides employers with a general guide to the agency’s current strategy for enforcement in the upcoming years.
The SEP lists six substantive area priorities, which largely mirror the substantive priorities identified in the SEP for Fiscal Years 2013-2016: (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; and (6) preventing systemic harassment. Notwithstanding their similarities, the substantive area priorities in the SEP differ from those identified in the 2013-2016 SEP in important ways:
- To implement the priority on protecting vulnerable workers, district offices and the EEOC’s federal sector program will now identify specific vulnerable workers and underserved communities for focused attention, and assess how the EEOC’s resources might address local matters of concern for those groups.
- The SEP narrows the agency’s focus regarding the Americans with Disabilities Act – which falls under the ‘emerging and developing issues’ priority—to issues concerning qualification standards and inflexible leave policies that discriminate against individuals with disabilities.
- To further implement the priority on emerging and developing issues, the SEP adds a focus on issues concerning complex employment relationships and structures in the 21st century workplace; specifically, on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy. The SEP also adds a focus on backlash discrimination against Muslims, Sikhs, or persons of Arab, Middle Eastern or South Asian descent, and those perceived to be members of these groups in light of increased likelihood of discrimination in the wake of tragic events in the United States and abroad.
- The SEP extends the equal pay priority to explicitly reach all workers, including targeting disparities on the basis of race, ethnicity, disability and other protected groups.
- The SEP removes the term “retaliatory actions” from the access to the legal system priority and clarifies its focus on retaliatory practices that effectively dissuade others in the workplace from exercising their rights, as well as to focus on retaliatory policies.
Employers are encouraged to review the 2017-2021 SEP and consult employment counsel to determine how the EEOC’s priorities in the coming years may impact their employment policies, practices and workforces as a whole.