ON JANUARY 10, 2023, the U.S. Equal Employment Opportunity Commission publicized a draft five-year program, the EEOC Strategic Enforcement Plan for 2023 to 2027, that identified several of the top priorities the agency intends to focus on going forward. The plan is subject to change—especially since the public comment period just recently ended and may yield new facets of the strategic plan—but the draft nonetheless reveals the issues that will almost certainly influence how the EEOC will process, interpret and resolve claims of discrimination, harassment and retaliation in the next half-decade.
In Nevada, many such charges are processed not by the EEOC but by the Nevada Equal Rights Commission. NERC frequently looks to the EEOC (and federal law generally) for guidance, and indeed views itself as tasked with the mission of “spread[ing] the ‘gospel’ of equal rights statewide,” as one administrator put it during a meeting last December by providing free assistance to Nevada employees, particularly those in underserved classifications, to help resolve claims through settlement—or, if settlement is not possible, via litigation.
Companies would be wise to make sure that supervisors and in-house human resources teams get up-to-date training."
With NERC’s enforcement powers having been expanded in recent years, and with the commission currently trying to increase staffing (to fill vacancies that have accrued since the beginning of the pandemic), both federal and state enforcement of antidiscrimination laws will likely be on the rise over the next five years. If the EEOC’s draft plan is a preview, then the EEOC and NERC can each be expected to prioritize investigating and remedying the following claims categories.
1. Claims of discrimination and harassment brought by people with intellectual and developmental disabilities—including claims that employers failed to offer reasonable accommodations to such individuals as required by the Americans with Disabilities Act and Nevada Revised Statutes Chapter 613.
2. Claims of discrimination and harassment by members of the LGBTQI+ community, employees over age 40 and workers whose primary language is not English.
3. Claims that the use of criminal background checks in the hiring process has a disparate impact on racial minority groups.
4. Claims that the use of artificial intelligence in recruiting and hiring may target (and negatively affect) disabled employees and other protected classes.
5. Claims that companies have failed to update their policies and practices to ensure compliance with the newly enacted Pregnant Workers Fairness Act (PWFA) of 2022.
6. Claims that companies are violating federal and state law by using overly broad waivers, release agreements, nondisclosure agreements and nondisparagement agreements to prevent public disclosure of allegations of sex discrimination or otherwise deny employees access to the legal system.
To avoid ending up on the radar of the EEOC or NERC, here are three important steps businesses can take.
• With new antidiscrimination statutes (such as PWFA and its companion, the Providing Urgent Maternal Protections for Nursing Mothers Act, or PUMP) having been enacted recently, now is the time for companies to ensure that their employee handbooks are up to date. If they aren’t, outdated policies could be misconstrued as evidence that employers don’t know about, or simply choose not to comply with, the newest employment laws.
• Likewise, businesses should review form agreements (such as severance and nondisclosure pacts) to ensure that any confidentiality and nondisparagement provisions are legally compliant.
• Finally, companies would be wise to make sure that supervisors and in-house human resources teams get up-to-date training on how to identify situations in which an employee might need reasonable accommodations due to a physical or mental disability—without crossing a line by posing questions that the law simply does not permit an employer to ask.
Working with competent employment counsel to ensure that all policies, agreements and training are up to date will help businesses avoid problems that will only invite heightened scrutiny by federal and state antidiscrimination enforcement agencies.
Shannon Pierce is a director at Fennemore Craig, P.C.’s Reno, Nevada office who practices primarily in the areas of employment defense and commercial litigation. Licensed in both Nevada and California, she has nearly 20 years of experience litigating on behalf of management concerning claims of employment discrimination, wrongful termination, leaves of absence and other traditional employment and commercial litigation.