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EEOC Pursues Deliberate Mission Creep

Jan. 4, 2019
New research office is aimed at exposing employers to data about discrimination.

The Equal Employment Opportunity Commission (EEOC) has created a new research unit called the Office of Enterprise Data and Analytics (OEDA) intended to “provide customers timely, accurate and bias-free data and information to prevent and remedy unlawful employment discrimination and improve organizational performance.”

“This is an exciting and forward-looking development,” says attorney Eric J. Felsberg of the law firm of Jackson Lewis. The firm’s Data Analytics Group was invited to EEOC’s headquarters in Washington, D.C., to attend a listening session about the new office.

“Employers have access to a wealth of data that, when paired with powerful analytical tools, can help them more effectively manage the workplace,” Felsberg says. “In order to remain competitive, reduce workplace management costs, and mitigate workplace-related legal risk, among other things, it is critical for employers to leverage their own data in combination with external sources.”

Asserting that their vision is to “build a 21st century data and analytics organization,” the EEOC describes OEDA’s principal goal is to “use state of the art data and information science tools and techniques to collect, utilize and share data and information, efficiently leveraging data to reduce burden and costs while protecting individual and employer privacy and promoting program transparency.”

Felsberg stresses that EEOC’s launch of the new office “should prompt employers to reconsider waiting to leverage data and analytics in managing their workplace. Using data and analytics in the workplace is not a passing fad.”

The federal EEOC’s new OEDA unit will consist of four divisions:

The Business Operations and Organizational Performance Division will oversee business operations and, among other tasks, is charged with enhancing the office’s transparency and effectiveness.

The Data Development and Information Products Division is intended to develop information products and taking part in data collection and survey methodology. It also will support EEOC charge-handling by linking EEOC charges with EEO-1 reports and providing analyses of EEOC charge data.

The Information and Data Access Division will oversee data governance and policy, and provide research and information services in support of enforcement litigation efforts.

The Data Analytics Division will provide systemic investigations analytical support and analytics on various data “to identify geographic, industry and other drivers of discrimination charges and emerging trends.” The division will consist of an Investigative Analytics Team and an Enterprise Analytics Team.

EEOC’s new office also is charged with taking steps to assist employers by making valuable data and data-related products available to them. It also will equip agency investigators and enforcement officials with new data and analytical resources.

“While access to new collections of data and data products from the EEOC will be of great value, employers should take note that these, and additional, resources also will be at the disposal of, and potentially bolster, enforcement efforts,” observes Felsberg. “Therefore, it is critical for employers to embrace the use of data to help analyze and manage the workplace and to better identify positive and negative trends.”

Big Data’s Potential Pitfalls

At present, when it comes to equal opportunity issues where employers make use of Big Data and analytics, the situation usually involves a company large enough to have a diversity officer and function. The potential for misuse of this data makes it vital that employers to seek legal counsel if it can be expected to generate anything other than unalloyed good news.

Typically, the analysis performed makes use of that company’s human resource information system (HRIS), which is considered proprietary information. Most diversity offices track workforce demographics using such a system, sometimes also called a human resource management system (HRMS).

These analyses typically include all job groups, like EEO-1 job categories, and may be as granular as job titles, Jackson Lewis explains.  Most include race/ethnicity and gender, some include age and others may include such factors as veteran status, sexual orientation and disability, in part depending on the availability and reliability of the data in the HRIS.

The analyses may be snapshots for a specific date, or time-trends for comparison purposes: “Are we improving year-to-year in our representation of Hispanic females at the mid-level manager position?” Either way, they typically result in pie charts, graphs and other visual aids clearly displaying percentages of representation by race/ethnicity, gender, etc., sometimes with red-shaded warning signs for “high-risk” (or “high-opportunity”) areas, points out Jackson Lewis attorney John M. Bryson II.

One goal is benchmarking: Diversity offices being able to answer their CEO’s question, “So how are we doing compared with our competitors?” Benchmarking is a relatively easy task so long as comparative data is available, Bryson notes. “That, however, is the rub. Although some do, most companies do not publish their workforce demographic data.

Some periodicals, like DiversityInc, publish limited data on those recognized annually as their “Top 50 Companies for Diversity,” Bryson says. The list may include companies in your industry, and even if it doesn’t, it can be considered a “best in class” benchmark. There are other sources as well, such as industry groups and the EEOC.

He notes that government contractors are accustomed to preparing annual Affirmative Action Plans that include statistical analyses of potential “adverse impacts” of various employment processes, such as recruiting/hiring, performance evaluations, terminations, compensation and promotions.

“These analyses can be critical in proactively uncovering problems and addressing them,” Bryson says. “Particularly with non-government contractors, diversity and human resources offices often conduct such analyses to determine the fairness and equity of corporate policies and practices. Like other self-critical analyses, they present risks if disclosed.”

Because of the risk that the data will become publicly available, he says companies should identify potential legal and reputational implications of these analyses, and make sure to address them as quickly as possible.

Such data can turn out to be useful to enforcement agencies (EEOC and the Office of Federal Contract Compliance Programs), plaintiffs’ attorneys, disgruntled employees, activist shareholders and any media critics your company may face in the future.

You should take steps to establish and preserve the attorney-client privilege for such analyses as you would any other area of legal advice, Bryson urges. “You can also probe the accuracy and reliability of the methods used and results,” he adds. “To the extent your diversity office wants to publish the results of analyses beyond a ‘control group,’ ensure that this business decision considers the legal and reputational risks.”

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