EEOC Issues New Strategic Enforcement Plan

The Equal Employment Opportunity Commission (EEOC), an agency of the federal government created by the Civil Rights Act of 1964 to prevent discrimination, created an enforcement plan in December 2012 for years 2013 through 2016. This month, the EEOC has put together a strategic enforcement plan (SEP) for years 2017 through 2021. One of the ways the EEOC combats discrimination is targeting unfair, discriminatory recruitment and hiring policies. Employers with fifteen or more employees are subject to the guidelines of the EEOC. The guidelines for proper recruiting measures can be found here.

For 2017-2021, the EEOC will be focusing on class-based recruitment practices that discriminate against racial, ethnic, religious groups, older works, women, and those with disabilities. Due to an expanding temporary workforce, the EEOC has made it its priority to focus on temporary workers, staffing agencies, and independent contractor relationships.

EEOC Initiatives:

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.

As a 3^rd-party provider of background screening, we will be focusing on the first initiative. The EEOC means to target screening tools that disproportionately impact workers based on their protected status. They include pre-employment tests, background checks impacting African American and Latinos, date-of-birth inquiries that impact older workers, and medical questionnaires that impact individuals with disabilities.

The EEOC’s recommendations for proper use of background information:

• Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, if you don't reject applicants of one ethnicity with certain financial histories or criminal records, you can't reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
• Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a "disparate impact" and is not "job related and consistent with business necessity."
• Be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job - despite the negative background information - unless doing so would cause significant financial or operational difficulty.

Make sure your company is not using date of birth for anything other than a criminal record search. Any other use of the date of birth could be construed as discrimination against older workers. Be certain any exclusions based on criminal history are relevant to the tasks required of the job and do not negatively impact a certain race exclusively. Lastly, give applicants with disabilities a chance to prove his/her capability to do the job at hand.

We recommend companies review their recruitment and hiring practices to ensure that they are in line with EEOC requirements.  To see the SEP in full, click here.