Guest Column: EEOC Strategic Enforcement Plan: Considerations for Senior Living and Social Services Providers
Guest Column from M3 Insurance
The U.S. Equal Employment Opportunity Commission (EEOC) recently released its 2024-2028 Strategic Enforcement Plan, which calls out 6 key areas that the agency is looking to prioritize. As senior living and social services organizations start to identify areas of focus for 2024, this should be on your list to review policies, procedures, and practices related to these EEOC priorities. The 6 key areas include (this information is not all-inclusive):
1. Use of AI in recruitment and hiring. The EEOC plans to scrutinize whether using AI excludes or adversely impacts protected groups under Title VII based on certain characteristics that may be filtered out by the algorithm. They also plan to hone in on application processes and systems that are inaccessible for those with disabilities.
Considerations:
- If you currently use AI, or are looking to implement AI, in the recruitment/selection process, discuss with the software vendor how they mitigate the concern with AI filtering out certain characteristics that may be discriminatory in nature.
- Implement ways to audit the system to ensure qualified candidates are not being weeded out based on protected characteristics.
- Evaluate online and in person application methods to ensure they are accessible for individuals with disabilities. Consider putting information on your website career page on how to contact someone if a candidate needs to request a reasonable accommodation for any part of the hiring process.
2. Protecting “vulnerable workers” including immigrant/migrants and LGBTQ+, individuals with disabilities, among others.
Considerations:
- With the increase of migrants into the workforce, ensure wages and employment practices are consistent with this workforce compared to domestic workers. Consider working closely with an employment attorney to ensure the organization is following the law in relation to migrant workers.
- Evaluate discrimination and harassment policies to ensure the “vulnerable workers” categories are appropriately accounted for.
3. Discrimination against individuals w/ disabilities and pregnancy related conditions.
Considerations:
4. Equal pay. This includes pay secrecy policies, discouraging or prohibiting workers from asking about pay or sharing their pay with coworkers, and considering salary history or an applicants’ salary expectations to determine their compensation. The EEOC has taken the position that use of salary history information violates the federal anti-discrimination laws.
Considerations:
- Is there language in any policies that discourages or prohibits employees from discussing wages amongst co-workers? Review policies to identify, and if there is, revise to not include such language.
- Evaluate process for determining wages/salary upon hire. Do not ask for or use candidate’s salary history in the factor of setting their wage.
- Consider performing a pay audit to identify the source of any pay differences and address any areas of concern (consider a third party vendor).
5. Employee access to legal system, i.e. use of employment arbitration agreements, NDAs, etc.
Consideration:
- Evaluate with employment counsel any NDAs or other agreements employees sign that may hinder their ability to pursue legal action.
6. Workplace Harassment – EEOC Proposed Updated Workplace Harassment Guidance, notable changes include:
- Sex-based discrimination now includes discrimination based on gender identity- i.e. continually using the wrong preferred name or pronoun, denial of certain bathroom use.
- Incorporates remote work into the environment (comments or images during video meetings) and use of personal devices/platforms (i.e. social media) if it affects the workplace.
Considerations:
- Evaluate how employees/supervisors are educated on gender identity and use of preferred names, pronouns, and bathroom facilities (how could this be included in the DEI program?).
- Review workplace harassment policy to ensure alignment with guidance, including:
- Accounting for social media use and “new” work practices such as video calls
- Evaluate investigation practices to ensure that allegations and reports of harassment are reported appropriately and investigated (education to managers/supervisors)
- “Associational Discrimination”- employees who may be on the receiving end of harassment simply because they associate with other protected classes whether through marriage, friendships, relationships outside of work
- Evaluate cadence and content of harassment training. Complete upon hire and annually, ensure training reflects updated guidance.
Key Takeaways:
The EEOC has identified priority enforcement areas for which senior living and social service organizations should consider an internal or external (with employment counsel) review of associated policies and procedures to identify and mitigate any areas of risk in current practice. Reach out to your M3 senior living and social services account executive or risk manager to learn more.
Pat LeMire is a senior account executive and partner at M3 Insurance. His primary role is to work with skilled nursing and assisted living facilities, evaluating their operations and partnering with them to manage their property and casualty program. M3 Insurance is a WHCA/WiCAL Elite Premier Business Partner.
Connect with Pat: 608.288.2807 | pat.lemire@m3ins.com
