February 19 Tip of the Week

“EEOC’s Strategic Enforcement Plan”

The Equal Employment Opportunity Commission released its 2024-2028 Strategic Enforcement Plan in late September 2023.  This plan is an important document for all employers, as it sets forth areas that the EEOC will concentrate on to ensure that employers are complying with their obligations under the federal employment discrimination laws.  The plan identifies several areas of focus for the EEOC in the coming years, including: eliminating barriers in recruitment and hiring; protecting vulnerable workers and persons from underserved communities from employment discrimination; addressing selected emerging and developing issues; advancing equal pay for all workers; preserving access to the legal system; and preventing and remedying systemic harassment.   In furtherance of its strategic plan, the agency will prioritize charges that are received that fall within the areas of focus that it has identified in its strategic plan. 

Employers can see where efforts have already been made on a state and federal basis to address some of these priority areas.  For example, state laws regarding pay transparency have made some inroads into pay disparity and have reduced the longstanding wage gaps.  States have also passed laws that address the terms and conditions of employment for temporary workers, which are intended to eliminate some of the uncertainty faced by this large contingent of workers.  This legislation is consistent with the EEOC’s stated priority of protecting vulnerable workers.  The new pregnancy discrimination laws are another example of changes that have been to address the EEOC’s strategic priorities. 

It is beneficial for employers to be aware of the stated priorities of enforcement agencies, because those priorities are a clear sign post informing employers of where they need to focus their compliance efforts.  One area where this is particularly true is in the area of hiring.  Employers who use technology, such as recruiting and hiring software programs that use algorithms to review applications received, will be subject to greater scrutiny as part of this strategic plan.  An employer whose failure to hire members of protected or underserved classes based on the use of technology and is the subject of an EEOC complaint will definitely become a high priority for the agency because it addresses several of the agency’s stated objectives.  Therefore, employers need to know how to navigate their hiring decisions in this environment. 

As we have previously noted, employers must have well written, comprehensive, and legally compliant handbooks that lay out their employment policies, processes and practices.  In addition to the employee handbook, employers must have well-written and accurate job descriptions that reflect what an employee is actually expected to do in their role and includes qualifications that are job related and necessary for success in that role.  Setting artificially high qualifications, such as a certain level of education or work experience, can exclude certain types of applicants who could do the job but are never given the chance because their application will be rejected through the use of the employer’s hiring system and its algorithms.  The job description should also include a pay range – in fact, this is required in some states – which adds to pay transparency and does not allow employers to low ball certain applicants based on protected classifications or previous discrimination. 

Employers often focus on the end of the employment relationship, due to concerns over unfair termination.  The beginning of the employment relationship, however is equally as important and has as many potential pitfalls from a compliance and discrimination perspective as the end of the relationship.  In fact, poor decision making during the application process can be even more expensive for employers because job applicants can create a class of plaintiffs, while a single termination decision is less likely to have such a large impact.  As a result, employers must exercise equal care when recruiting and hiring employees as they do when they terminate employees.  myHRcounsel can assist you in navigating all aspects of the employment relationship in a way that minimizes your risks and puts you in the best position to defend against any claims that may be brought against you.