EEOC Updates Strategic Enforcement Plan

In mid-October, the United States Equal Employment Opportunity Commission (EEOC) approved an updated Strategic Enforcement Plan (also known as SEP) for Fiscal Year 2017 through 2021. The update reinforces the agency’s commitment to its efforts to advance equal opportunity in the workplace by announcing various enforcement priority areas. Employers should review the new SEP carefully to identify potential areas of compliance risk on a proactive basis.

EEOC Chair Jenny R. Yang stated, “This SEP builds on the EEOC’s progress in addressing persistent and developing issues by sharpening the agency’s area of focus and updating the plan to recognize additional areas of emerging concern. 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.”

Employers who were hoping that EEOC might change its enforcement focus are likely to be disappointed. Like the EEOC’s previous SEP, the EEOC made clear that it will continue to focus on “systemic litigation.” In fact, in the new SEP, “[t]he Commission reaffirm[ed] its commitment to a nationwide, strategic, and coordinated systemic program as one of EEOC’s top priorities” and promised to continue to pursue cases that have a “strategic impact.” Examples in the new SEP include cases that raise an issue of developing law or promote compliance across a large organization, community, or industry.

The revised SEP will continue to prioritize the areas that were previously identified by the Commission:

• Eliminating barriers in recruitment and hiring
• Protecting workers, including immigrant and migrant workers
• Addressing selected emerging and developing issues
• Ensuring equal pay protections for all workers
• Preserving access to the legal system
• Preventing systemic harassment

Although these areas will remain a focus, the revised SEP refocused the agency’s emphasis in certain respects. For example, while the EEOC’s prior SEP noted that addressing pay discrimination based on sex was a priority, this SEP also notes the agency will focus on combatting pay discrimination based on race, ethnicity, age, and for individuals with disabilities. The new SEP also identifies LGBT discrimination issues and the treatment of pregnancy-related limitations as emerging issues. Finally, in the recruitment and hiring context, the EEOC noted that it will focus on the lack of diversity in certain industries (technology and policing were specifically mentioned in the revised SEP); and (2) the increasing use of data-driven screening tools.

Two additional areas were added as emerging priorities:

• Issues related to complex employment relationships in the 21st-century workplace, including “temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.”; and 
• Backlash 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, as tragic events in the United States and abroad have increased the likelihood of discrimination against these communities.

Also emphasized were coordination strategies across the EEOC to leverage the agency’s resources. In a change from the previous SEP, each district office will no longer be required to submit at least one litigation proposal each year to the Commission for a vote. Instead, to ensure the Commission is kept apprised of how delegated authority is working, the Commission will receive reports from the Offices of General Counsel and Field Programs summarizing any mediations, conciliation agreements, settlements, and approved litigation, among other issues.