Bryan D. LeMoine

Bryan D. LeMoine Partner

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The EEOC Updates Its Strategic Enforcement Plan — An Exercise in Futility or a Path for HR Professionals to Follow?

As part of the flurry of activity on the part of several government agencies prior to President-Elect Trump’s inauguration, the EEOC updated its Strategic Enforcement Plan (SEP for short) for 2017-2021.

The EEOC outlines six “substantive area priorities” for 2017-2021, which are:

  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.
  6. Preventing systemic harassment.

Several of these substantive area priorities seem familiar, such as the focus on preventing systemic harassment or equal pay protections.  Of particular note for employers, however, are those priorities that target current practices related to hiring and recruitment (for example, online application systems that are not accessible to disabled individuals).  Specific offices will look at vulnerable workers and address areas of local concern for those groups (i.e., discrimination against Native American tribes might be a focus according to the SEP).

I’m sure your attention was caught by the general descriptions of some of the priorities, calling for addressing selected emerging and developing issues and preserving access to the legal system.  With respect to emerging and developing issues, the “gig economy” – short-term employment filled by independent contractors – is one of those issues to be targeted as well as discrimination against those nationalities likely to be of Muslim faith (or those perceived to be in those nationalities).

As for preserving access to the legal system, these might be of the most interest to employers who have long relied on broad release documents, arbitration provisions, document retention programs that do not retain applicant and employee data required by the EEOC, and retaliatory practices that dissuade employees from exercising their rights.

Most commentators seem to agree that the changes President-Elect Trump’s administration will bring to the EEOC will be resource and personnel driven.  One clear change will be in the General Counsel, who gave local offices of the EEOC much more control over their enforcement and litigation agendas.  Budgets for enforcement could be cut and new regulations could be rolled back (for example, the new EEO-1 regulations).  Importantly, however, the one thing we have seen is that President-Elect Trump will go his own way, and we cannot predict exactly the form the changes will take to the EEOC in 2017.

Employers should pay attention in 2017 to the less obvious ways that discrimination can occur, such as websites or application processes that are not accessible to those persons who have disabilities.  Even if the EEO-1 regulations are rolled back, employers must still pay attention to pay equity issues among their employees.  And employers must recognize that overly broad releases or arbitration clauses that limit persons’ access to the courts or administrative agencies like the EEOC may bring litigation in state or federal court.  Regardless of the changes that may come in federal law or policy, state courts may still impact the ability of employers to enforce arbitration clauses or release agreements.  In Missouri, for example, a federal judge recently held that continued employment is not adequate consideration for non-competition agreements based on Missouri law.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including those relating to the enforcement agenda of the EEOC, for over sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.