EEOC Review: The Top 8 Areas of Focus for 2016

I had the opportunity to attend NOVA SHRM’s 2016 Legal Academy and gained a wealth of information about current and potential future legislation and how it impacts businesses in the DC metro area.  One of the speakers was Martin S. Ebel,the Director of Field Management Programs at the Equal Employment Opportunity Commission (EEOC).  Mr. Ebel provided us with metrics, dived into the claims process at the EEOC, and discussed the areas of focus in the 2016 Strategic Enforcement Plan for the EEOC.

Before I share the EEOC areas of focus, one of the things I found most fascinating was how transparent Mr. Ebel was with us about the EEOC. It was clear he wanted to partner with local HR professionals to ease the administrative burden that many of us feel when dealing with the EEOC, in turn making their lives a little easier.  For starters, he was transparent about budgeting and staffing limitations and shared that although all claims will be considered and exceptions will be made, the EEOC has identified the high priority forms of discrimination that will be at the center of their efforts this year.  The EEOC simply is not staffed to investigate every claim.

Additionally, Mr. Ebel shared that the claims process has moved to an online platform and that companies, in most cases, will be receiving notices via e-mail and accessing information through an online portal rather than the former paper versions.  There are some exceptions to this in 2016 and they’ve established a goal to be paperless in 2017.

Lastly, Mr. Ebel talked about the EEOC mediation process and how this is their preferred avenue to claims resolution.  He shared even when mediation doesn’t fully resolve the claim the high majority of participants find the process to be very valuable, on both the claimant and the employer sides.

The Top Areas of Focus for the Equal Employment Opportunity Commission in 2016

1. Systemic Issues

Emphasizing any areas of discrimination and unfair treatment that show a pattern in an organization (i.e. more than a few people are impacted) will be a focus area for the EEOC.  Male dominated industries are going to be a focus area along with cases of harassment in the workplace.

2. Barriers to Recruitment/Hiring

Encompassing a number of hiring barriers put in place that are not actually bona fide job requirements.  Examples given were criminal records being used as a reason to not offer a position, English only requirements, etc. 

3. Immigrant, Migrant, and other Vulnerable Workers

Covering a broad category of vulnerable workers, the EEOC is looking for unfair treatment through the establishment of requirements that are not actual requirements to effectively accomplish core job duties, such as English only/ESOL requirements and education requirements. 

4. ADA Amendments Act (ADAAA)/Pregnancy Discrimination Act (PDA) Intersection

Ensuring pregnant women, with or without risk in their pregnancy, are provided the same disability accommodation rights under the ADAAA. 

5. LGBT Coverage

Making certain discrimination against gender identity and gender orientation do not exist in the workplace.

6. ADA Amendments Act Refinements

Guaranteeing the Americans with Disabilities Act and all Amendments are incorporated in business; specifically where FMLA extensions need to be granted if a reasonable accommodation requested by the employee was mentioned as a focus area.

7. Enforcing Equal Pay Act

Focusing on closing the gap between male and female pay inequities in organizations to ensure equal pay for women. 

8. Preserving Access to the Legal System

Concentrating on waivers, releases and agreements that try to prevent individuals from submitting claims to government agencies.

Consult with your HR Partner to Review Your Employment Practices

While organizations should always be making good faith efforts to ensure compliance with all Federal, state, and local regulations related to employment law, now is a good time to pay close attention to the practices identified as high priority by the EEOC.  Below are the top three recommended compliance areas Helios recommends all organizations review:

1. Review your recruiting practices to ensure you are compliant with all Federal, state, and local regulations; pay close attention to your application, your job requirements, your interview practices, your pre-employment testing (to include background checks), and government contractors need to ensure compliance with the additional OFCCP regulations.
2. Conduct a thorough compensation analysis to not only ensure compliance with Fair Labor Standards Act but to review for equity across the organization by job level to help protect your company from unintended age, race or gender discrimination in your pay practices.
3. Review your policies and processes related to harassment, discrimination, and disability accommodations to ensure there is a clearly defined policy, process for escalation/resolution, and accommodation process that mirrors the requirements under all applicable Federal, state, and local regulations.

It is our experience, at Helios, many of our clients are trying to do the right thing and we still find gaps in their policies and practices leaving them exposed to legal liability.  Our clients also find, the cost of scrutinizing their policies and practices to understand the state of their compliance, analyzing potential risk, and making adjustments proactively is much less costly than that of fines and back pay you could owe if find yourself in the middle of an EEOC claim.