On October 17, 2016, the U.S. Equal Employment Opportunity Commission issued an update to its strategic enforcement plan (SEP), thereby unveiling the areas upon which it intends to focus over the next five years. Although the EEOC continues to enforce all of the federal employment anti-discrimination statutes, the EEOC will likely flag and pay particular attention to charges of discrimination that fall within the prioritized areas.
The areas identified in the SEP are:
- 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 SEP places special emphasis on protecting “persons who are Muslim or Sikh, or persons of Arab, Middle Easter or South Asian descent” from “backlash discrimination” and on issues posed by “complex employment relationships and structures in the 21st century workplace, focusing specifically on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.”
Typically, a worker who believes that his or her employer has violated one of the laws under the EEOC’s purview files a charge of discrimination against his or her employer with the EEOC. The EEOC then decides whether to investigate the charge of discrimination based upon the allegations. The EEOC may, either without investigating or after an investigation, dismiss the charge without finding cause to believe that the employer violated the implicated statute, or the EEOC may find cause to believe the statute was violated. If cause is found, the EEOC may file a civil lawsuit against the employer. Even though a charging party may still bring suit against the employer on his or her own within 90 days of a dismissal by the EEOC, the prospect of an EEOC cause finding and the possibility of litigating against the federal government with all of the resources that it can bring to bear, as opposed to a private litigant, renders the possibility of a cause finding daunting.
Charges that implicate one of the areas identified in the SEP, especially those that allege “backlash discrimination” or relate to the employment structures recited above will draw additional scrutiny from the EEOC, are more likely to be thoroughly investigated than charges that do not implicate the SEP’s areas of emphasis. Consequently, although it is wise for employers to avoid situations that give rise to any claims of unlawful discrimination, employers would be wise to be particularly vigilant when addressing workplace situations that might implicate the areas of interest identified in the SEP. Employers should also consider assessing their employment policies to ascertain whether any of those policies implicate the SEP’s areas of interest.