“Backlash Discrimination” and “Complex Employment Relationships” at the Heart of the EEOC’s 2017-2021 Strategic Enforcement Plan
On October 17, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) unveiled the adoption of its 2017-2021 Strategic Enforcement Plan (“SEP”). The SEP, which was approved by a 3-2 vote, outlines the Commission’s goals and strategies for enforcing the anti-discrimination laws under its purview for the next four years. On the whole, the agency’s chief substantive enforcement priorities remain largely unchanged. Similar to the 2012-2016 iteration, the updated SEP reaffirms the Commission’s focus on the following six substantive areas:
- 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 Systemic Harassment.
The two big changes appear as subsets of the third priority. In the SEP, the EEOC has announced its intent to target the following areas of significance.
Complex Employment Relationships in the Twenty-first Century Workplace
During fiscal years 2017-2021, issues related to complex employment relationships in the 21st century workplace will be an area of particular focus for the EEOC. Specifically, the Commission seeks to clarify the increasingly murky employment relationship and the application of workplace civil rights protections. By doing so, the EEOC takes stock of the ever-changing workforce.
In today’s market, employers have increasingly relied on the use of temporary workers, subcontractors, franchisors and independent contractors to meet their business and workforce needs. This reliance has created varied organizational and staffing models and an abundance of questions about a worker’s status vis-à-vis the entity for which the work is being performed. Given the Rubik’s Cube that is worker classifications and the changing climate of employer determinations as evidenced by the positions taken by the Department of Labor and the National Labor Relations Board, employers are well-served to keep this priority in mind as they evaluate and ultimately make staffing decisions.
In response to recent events and the undeniable growing tension involving individuals of particular backgrounds which has spilled into the workforce, the EEOC has announced its intention to target “Backlash discrimination.” Backlash discrimination relates to 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.
The EEOC’s actions have previously highlighted this issue as one of importance. By the Commission’s own account, the EEOC has filed approximaly 90 lawsuits alleging religious and national origin discrimination involving the Muslim, Sikh, Arab, Middle Eastern and South Asian communities. In addition, the EEOC has provided information to employers by way of questions and answers about employers’ responsibilities in employing Muslim, Arab, South Asian and Sikh workers to aid in ensuring a discrimination-free workplace. This information can be found at the following link: http://www.eeoc.gov/eeoc/publications/backlash-employer.cfm.
Narrowed Focus on ADA Issues
In addition to adding priorities to the list of emerging and developing issues, the EEOC has stated its intention to narrow its focus for claims brought under Americans with Disabilities Act to qualification standards and inflexible leave policies that discriminate against individuals with disabilities.
As the EEOC begins to put these and other enforcement priorities into play, employers unsure about particular employment decisions should seek the advice of experienced employment counsel.