Back in 2012, the Equal Employment Opportunity Commission provided guidance to the public on what especially draws its attention through the release of the 2012-2016 Strategic Plan. Last month, the EEOC again published its intentions for the next four years with the release of its Strategic Enforcement Plan for Fiscal Years 2017-2021.
The 2017-2021 SEP Executive Summary is a worthwhile read for anyone addressing employment law in the workplace. Of primary interest here are the priorities the EEOC identified that it will seek to address over the next four years. These priorities should serve as a big alarm to employers when evaluating their own workforce practices. If the EEOC receives a complaint involving these priorities, it is likely going to draw the agency’s full attention. While any company would be well-served to pay close attention to all of the priority issues, two stick out as especially pertinent in the coming years.
First, the EEOC’s priority on Eliminating Barriers in Recruitment and Hiring directly addresses a couple of growing trends in hiring practices for employers. One trend is that employers are increasingly relying on “big data” to select candidates. These techniques rely on examining objective data seen in successful employees to control an employer’s hiring practice as opposed to, for example, personal impressions observed in the interview process. A great person to follow for more information on big data recruiting is Kate Bischoff. The EEOC is likely going to focus their efforts in this regard to evaluate whether these hiring processes are excluding certain protected-classes of individuals.
Another significant trend related to the EEOC’s recruiting and hiring priority is the technology driven ways in which employers are recruiting for positions. In other words, is an employer’s recruiting and hiring practices excluding certain protected classes from employment without any specific intent to do so. An example of a case that could be raised with greater frequency comes from the EEOC’s 2014 public meeting on social media. There, the EEOC highlighted a claim raised by a 61-year-old applicant who alleged that a federal employer’s use of social media to recruit candidates put older workers at a disadvantage. Similar claims may be raised against private sector employers that do not use diverse methods to attract new talent.
Second, the EEOC’s priority on developing issues, including LGBT discrimination, is one to closely watch in the coming months and years. I highlight this issue because, recently, the Seventh Circuit (the federal court of appeals that covers Wisconsin) took up the case of LGBT discrimination under Title VII for en banc review. Taking on a case in this fashion suggests it may reconsider a three-judge panel decision finding that sexual orientation discrimination is not a claim under Title VII. As recently as last week, a Western District of Pennsylvania court found just the opposite, giving the EEOC its first taste of victory in this arena. In any event this is proving to be a hot topic that employers may be best cautioned to simply avoid by treating it as though Title VII includes the protection.
I would be ignoring the elephant in the room if I did not suggest that Donald Trump’s success in the presidential election may ultimately impact the EEOC’s priorities. In the coming months, President-elect Trump will likely set his own agenda and issue directives to the agency. We do not have a clear picture from the campaign what his priorities may be, but they are almost certain to contrast in some respect to those of President Obama’s administration.