On October 17, 2016 the Equal Employment Opportunity Commission (EEOC) released an updated version of their Strategic Enforcement Plan (SEP) that was originally developed in 2012. In doing so they added two areas of enforcement of which employers need to be aware.
Before I talk about the new areas it would probably be good to remind everyone of what the “old” areas on which the EEOC focused attention. These included:
- 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 result of this previous plan was an increased emphasis on the use of background checks in employment and the use of the “individualized assessment” when making hiring decisions. This requires employers to avoid making blanket rejections based on a previous criminal history and said employers should consider the circumstances, such as time and crime, when making hiring decisions.
As a result of changes in the world of work and an increasingly difficult geopolitical situation the EEOC has added two new areas of emphasis under the emerging and developing issues. One of these is the increased discrimination against workers of Middle Eastern descent. There will be increased emphasis in making sure workers who are from the Middle East or perceived as being from the Middle East (Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent) receive protection from discrimination.
The second area that is emerging is the new workplace. The use of workers from the “Gig” economy is on the rise by employers. Temporary workers and independent contractors are not afforded the same protections under the law as employees. The EEOC has vowed to monitor these areas and to develop regulations that may afford anti-discrimination protection to workers in those areas.
With the gig economy the definition of worker and employee are changing, and as I have talked about in the past in Future Friday: Is the future of the gig economy more regulation? Some think that the Gig economy will not survive because of efforts of government agencies, like the EEOC, to regulate it. I don’t think this is the case, but some effort may be needed to provide direction to employers. Will the EEOC be able to provide it?
Only time will tell.