Shortly after his administration began, President Biden signed Executive Order 13985, "Advancing Racial Equity and Support for Underserved Communities Through The Federal Government." In April 2022, in accordance with this Executive Order, the Equal Employment Opportunity Commission ("EEOC") released its "Equity Action Plan," which contains several items that may impact employers.
The EEOC summarizes its equity action plan by stating that it "focuses on systemic racial discrimination, advancing equity in the agency's activities, and improving outreach to underserved communities." The EEOC plans to accomplish these goals by:
1. Improving Worker Access to the Charge Process
- Improving worker access to the EEOC's charge filing process so that individuals in rural areas who have inflexible schedules or limited digital resources can use the EEOC's services with greater ease;
- Engaging with a broad range of employers, researchers, workers, and civil rights organizations to support diversity, equity, inclusion, and accessibility ("DEIA");
- Further developing the EEOC's data collection and analysis to support effective enforcement of EEO laws and to encourage individuals to exercise their civil rights; and
- Continuing to improve access to the EEOC's resources for non-English speaking workers and for those who have limited reading proficiency or lack access to digital resources.
The EEOC plans to improve access for workers to file charges with the EEOC by shortening the wait time for intake appointments; increasing staff at its national call center, including staff that can accommodate employers who do not speak English; making its intake forms and public portal available in other languages; and increasing outreach events in more rural areas.
By increasing access to the charge process, we anticipate that employers will see an increase in charges filed with the EEOC. We also would not be surprised to see similar measures employed by states.
2. Engaging to Support DEIA
This undertaking is meant to identify barriers and strengthen recruiting and hiring practices to ensure that workers who have historically been unrepresented have access to good jobs. The EEOC acknowledges that the nation continues to recover from the pandemic, and employers have faced historic job losses. The EEOC thinks that these changes create an opportunity for employers to reexamine recruitment, hiring, promotion and retention practices to ensure that these practices are not creating barriers to attracting and hiring a diverse range of applicants. The EEOC indicates that it plans to focus on providing resources and identifying strategies to assist employers to recruit, hire and promote employees with minority backgrounds and to increase such individual's ranks in leadership positions.
The EEOC further indicates that it will draw on its initiative on the use of artificial intelligence and algorithms in making employment decisions. Employers should note the EEOC's use of these new technologies and the potential impact they may have on the EEOC's enforcement efforts in the future, particularly in regard to charges relating to employers' hiring, retention, and promotion practices and decisions.
3. Further Developing Data Collection and Analysis
To implement this objective, the EEOC plans to update demographic categories on relevant EEOC forms (including gender self-identification categories to charge-related forms and possibly including further breakdowns on ethnicity and adding sexual orientation, gender identity and disability status to EEO-1 forms); explore ways to make EEO data more accessible; perform more targeted and deeper analysis of existing internal and charge data; and determine whether to expand its existing EEO data collection, including to better identify intersectional discrimination.
For internal analysis of charge and investigation data, the EEOC further intends to develop a complaint tracking system that will allow real-time analysis across various data sets within the federal sector; and identify and analyze persistent disparities in investigation, litigation and settlement outcomes to develop and implement mechanisms to create more equitable outcomes.
As the EEOC develops and collects ever increasing amount of data, we anticipate that this information could impact both the manner in which the EEOC handles charges of discrimination as well as the way in which the EEOC handles voluntary resolution of charges through mediation, settlement and conciliation.
The EEOC further indicates that, in 2020, it completed its first historic collection of pay data from private sector employers and that this data is being analyzed and will apprise future pay data collection by the agency. Once this pay data is reviewed and analyzed, we expect the EEOC (under President Biden) will use this information to resurrect the requirement for wage and hour type data to be reported by employers through the EEO-1.
As larger employers may recall, in 2016 (under the Obama administration), the EEO-1 survey was revised to require employers with 100 or more employees to report data about pay and hours worked broken down into different pay bands, job categories, and by race, ethnicity and sex. This revised EEO-1 survey was legally challenged and ultimately blocked by the Trump administration in 2018. Thus, while we fully expect to see the request for pay data in the EEO-1 included, we also anticipate additional legal challenges.
4. Continuing to Improve Access to EEOC Educational Materials and Websites
The EEOC notes that the majority of its website and educational materials are only accessible to those with a high degree of English literacy and the capability to access online resources. The EEOC plans to focus on identifying the most visited EEOC webpages and plans to translate them into languages other than English and to provide auditory resources for those with limited reading proficiency.
As with the first objective of the EEOC's equity action plan, with greater access, it is possible that employers will see an increase of charge-filing activity due to these changes.
If employers have questions or concerns about the EEOC's Equity Action Plan and how it may impact them, they should reach out to Spilman's Labor and Employment Group for additional information.