Updated EEOC Strategic Enforcement Plan Concerned with Gig Economy and Big Data in Background Screening

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Written By ESR News Blog Editor Thomas Ahearn

The U.S. Equal Employment Opportunity Commission (EEOC) recently approved an updated Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021 that reaffirms the EEOC’s commitment to advancing equal opportunity in America’s workplaces while also recognizing new areas of potential concern such as complex employment relationships in the emerging “gig economy” and the use of “big data” for background screening.

“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,” EEOC Chair Jenny R. Yang stated in a press release about the updated EEOC SEP, which will continue to prioritize the areas identified in its previous EEOC SEP for 2013-2016 with some modifications:

  • Eliminating barriers in recruitment and hiring;
  • Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination;
  • Addressing selected emerging and developing issues;
  • Ensuring equal pay protections for all workers;
  • Preserving access to the legal system; and
  • Preventing systemic harassment.

Of the notable updates made in the EEOC SEP for 2017-2021, two emerging issues may potentially impact background screening. The first is the complex employment relationships in the 21st century workplace known as the “gig economy.” The second is the increasing use of data driven screening tools known as “big data” that was the focus area of an EEOC public meeting on October 13, 2016.

The EEOC SEP added the gig economy – where temporary work and independent workers are commonplace – as an ‘Emerging and Developing Issues’ priority area: The Commission adds a new priority to address issues related to complex employment relationships and structures in the 21st century workplace, focusing specifically on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.

The EEOC SEP will focus on discriminatory recruitment and hiring practices that may include background screening tools “that disproportionately impact workers based on their protected status (e.g., pre-employment tests, background checks impacting African Americans and Latinos, date-of-birth inquiries impacting older workers, and medical questionnaires impacting individuals with disabilities).”

The EEOC SEP continued: The growth of the temporary workforce, the increasing use of data-driven selection devices, and the lack of diversity in certain industries and workplaces such as technology and policing, are also areas of particular concern. This priority typically involves systemic cases. However, a claim by an individual or small group may fall within this priority if it raises a policy, practice or pattern of discrimination.

The EEOC is responsible for enforcing federal laws prohibiting discrimination in employment.  More information about the EEOC is available at www.eeoc.gov. The EEOC SEP for Fiscal Years 2017-2012 is available at www.eeoc.gov/eeoc/plan/sep-2017.cfm. The press release about the updated EEOC SEP is available at www.eeoc.gov/eeoc/newsroom/release/10-17-16.cfm.

As reported earlier on the ESR News, the EEOC held a public meeting at agency headquarters in Washington, D.C. in October 2016 that focused on how “big data” – the use of algorithms, data scraping of the internet, and other means of evaluating thousands of pieces of information about an individual – is used during background screening to make hiring and employment decisions.

A panel of industrial psychologists, attorneys, and labor economists told the EEOC that both the use of and the scope of Big Data are expected to grow exponentially in the future during background screening for employment decisions. The EEOC has posted biographies and statements of all panelists at www.eeoc.gov/eeoc/meetings/10-13-16/. Public comments about the meeting may be emailed to Commissionmeetingcomments@eeoc.gov.

ESR also reported that the gig economy is growing fast. A 2015 American Action Forum Report estimated the gig economy accounted for 30 percent of new jobs and created new income sources for 2.1 million people in the United States between 2010 and 2014. A report from Intuit predicts the gig economy will reach 7.6 million people by 2020, and grow by 18.5 percent in the next five years.

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