U.S. Equal Employment Opportunity Commission building in Washington, D.C.
U.S. Equal Employment Opportunity Commission building in Washington, D.C. (Photo: Diego M. Radzinschi/ALM)

The Equal Employment Opportunity Commission unveiled its latest strategic plan Monday, which will prioritize three new pieces of the agency’s enforcement agenda: tackling nontraditional employment, protecting Muslims and Sikhs and ensuring the fairness of data-driven employment screening tools.

The EEOC’s new Strategic Enforcement Plan for Fiscal Years 2017-2021, follows the agency’s 2013-2016 SEP and aside from these new developments, looks much like its predecessor.

“This SEP builds on the EEOC’s progress in addressing persistent and developing issues by sharpening the agency’s areas of focus and updating the plan to recognize additional areas of emerging concern,” said EEOC chairwoman Jenny R. Yang in a statement announcing the plan.

The new plan comes at a time of change for the commission as its head enforcer, general counsel David Lopez, recently announced he will leave his post in December, and a replacement has not yet been named.

J. Randall Coffey, a partner at Fisher & Phillips in Kansas City, Missouri, who represents employers, said that employers should pay close attention to the new strategic plan, because the EEOC was “true to form” when putting its last strategic plan into action. “They essentially told employers what the focus of their resources was going to be, and they followed through on that for the most part,” he said.The new strategic plan promises to address what the commission calls “complex employment relationships,” such as temporary workers, independent contractors and on-demand economy workers.

This focus from the commission, explained Howard Wexler, an associate at Seyfarth Shaw in New York City who represents employers, indicates that like its fellow federal labor agencies, the National Labor Relations Board and the U.S. Department of Labor, the commission may be interested in bringing more cases under a joint employer theory. Joint employer cases link temporary and staffing agencies—as well as other types of partner entities—to the companies they serve, giving both liability for a labor violation committed by one. Wexler said that as temporary work arrangements become more common in today’s economy, the EEOC is “trying to adjust as well.”

“The issue is how far do they go and how attenuated the link is to find an entity to be a joint employer,” he said. For a lot of employers, he said, “it undermines their business models.” The EEOC also said in the plan that it will focus on “backlash discrimination” against Muslims, Sikhs and those who are or are perceived to be Arab, Middle Eastern or South Asian, as “tragic events in the United States and abroad have increased the likelihood” that these individuals will be targeted.

In addition, the plan says that the commission will focus on big data and its potentially discriminatory role in the hiring and recruitment processes, a topic the EEOC covered at an Oct. 13 panel that it hosted.

Panelists discussed how algorithms and internet data scraping—deciding what the characteristics are that would make someone a good hire or cultural fit at a company, and then finding job candidates based on those characteristics—could lead to a disparate impact on protected classes.

Speaking on that panel, Kelly Trindel, chief analyst at the commission’s Office of Research, Information and Planning, gave the hypothetical of a tech company made up primarily of young white and Asian-American males that wants to find new employees that fit in with its culture.

The company, she said, would likely use algorithms to find job candidates online based on characteristics that the workforce already has, such as biking to work or preferring perks such as snacks and happy hours, over others such as increased child care or better medical and life insurance benefits.

Trindel said that in this case, the algorithm would likely screen out women and older workers and people of other races, causing an “adverse impact” on these groups in the company’s hiring process.Trindel said that it is the employer’s job to understand the selection products they are purchasing or using and determine whether they have an adverse impact on particular demographic groups. “Where the use of these algorithms evidence adverse impact, it is the employer’s responsibility to maintain valid evidence that supports their use,” she said.

In a statement released after the panel’s conclusion, Yang said, “Big data has the potential to drive innovations that reduce bias in employment decisions and help employers make better decisions in hiring, performance evaluations and promotions,” but “at the same time, it is critical that these tools are designed to promote fairness and opportunity, so that reliance on these expanding sources of data does not create new barriers to opportunity.”


Related Article:

 If Trump Wins, What Happens to the EEOC’s New Vow to Defend Muslims and Immigrants?

 

The Equal Employment Opportunity Commission unveiled its latest strategic plan Monday, which will prioritize three new pieces of the agency’s enforcement agenda: tackling nontraditional employment, protecting Muslims and Sikhs and ensuring the fairness of data-driven employment screening tools.

The EEOC’s new Strategic Enforcement Plan for Fiscal Years 2017-2021, follows the agency’s 2013-2016 SEP and aside from these new developments, looks much like its predecessor.

“This SEP builds on the EEOC’s progress in addressing persistent and developing issues by sharpening the agency’s areas of focus and updating the plan to recognize additional areas of emerging concern,” said EEOC chairwoman Jenny R. Yang in a statement announcing the plan.

The new plan comes at a time of change for the commission as its head enforcer, general counsel David Lopez , recently announced he will leave his post in December, and a replacement has not yet been named.

J. Randall Coffey, a partner at Fisher & Phillips in Kansas City, Missouri, who represents employers, said that employers should pay close attention to the new strategic plan, because the EEOC was “true to form” when putting its last strategic plan into action. “They essentially told employers what the focus of their resources was going to be, and they followed through on that for the most part,” he said.The new strategic plan promises to address what the commission calls “complex employment relationships,” such as temporary workers, independent contractors and on-demand economy workers.

This focus from the commission, explained Howard Wexler, an associate at Seyfarth Shaw in New York City who represents employers, indicates that like its fellow federal labor agencies, the National Labor Relations Board and the U.S. Department of Labor, the commission may be interested in bringing more cases under a joint employer theory. Joint employer cases link temporary and staffing agencies—as well as other types of partner entities—to the companies they serve, giving both liability for a labor violation committed by one. Wexler said that as temporary work arrangements become more common in today’s economy, the EEOC is “trying to adjust as well.”

“The issue is how far do they go and how attenuated the link is to find an entity to be a joint employer,” he said. For a lot of employers, he said, “it undermines their business models.” The EEOC also said in the plan that it will focus on “backlash discrimination” against Muslims, Sikhs and those who are or are perceived to be Arab, Middle Eastern or South Asian, as “tragic events in the United States and abroad have increased the likelihood” that these individuals will be targeted.

In addition, the plan says that the commission will focus on big data and its potentially discriminatory role in the hiring and recruitment processes, a topic the EEOC covered at an Oct. 13 panel that it hosted.

Panelists discussed how algorithms and internet data scraping—deciding what the characteristics are that would make someone a good hire or cultural fit at a company, and then finding job candidates based on those characteristics—could lead to a disparate impact on protected classes.

Speaking on that panel, Kelly Trindel, chief analyst at the commission’s Office of Research, Information and Planning, gave the hypothetical of a tech company made up primarily of young white and Asian-American males that wants to find new employees that fit in with its culture.

The company, she said, would likely use algorithms to find job candidates online based on characteristics that the workforce already has, such as biking to work or preferring perks such as snacks and happy hours, over others such as increased child care or better medical and life insurance benefits.

Trindel said that in this case, the algorithm would likely screen out women and older workers and people of other races, causing an “adverse impact” on these groups in the company’s hiring process.Trindel said that it is the employer’s job to understand the selection products they are purchasing or using and determine whether they have an adverse impact on particular demographic groups. “Where the use of these algorithms evidence adverse impact, it is the employer’s responsibility to maintain valid evidence that supports their use,” she said.

In a statement released after the panel’s conclusion, Yang said, “Big data has the potential to drive innovations that reduce bias in employment decisions and help employers make better decisions in hiring, performance evaluations and promotions,” but “at the same time, it is critical that these tools are designed to promote fairness and opportunity, so that reliance on these expanding sources of data does not create new barriers to opportunity.”


Related Article:

 If Trump Wins, What Happens to the EEOC’s New Vow to Defend Muslims and Immigrants?