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Apr 16, 2021
This article is part of a series called ERE Digital: Back to the Future.

President Biden has made it clear. He is going to be fighting for workers. For recruiters, this means some big regulatory changes that will affect recruiting in hopes of reducing racial and gender disparities. Are you ready?

New laws are not likely in the cards immediately. (With such a divided Congress, passing employment laws at this moment is difficult, to say the least.) However, we can expect to see some big changes to regulations in the coming year, especially those that directly affect recruiters. 

One way the Biden Administration may take steps quickly and without Congressional action is by targeting regulations at federal contractors. Approximately 25% of employers are federal contractors, and if some assumptions hold up, federal contractors are bigger and have more resources available than the average employer.

The Department of Labor division responsible for regulating federal contracts is our old friend, the Office of Federal Contract Compliance Programs. The OFCCP’s oversight includes affirmative action and contractor minimum wage issues. The OFCCP is going to be very busy over the next year.

Another way is through the Equal Employment Opportunity Commission. The EEOC is led by five commissioners on five-year staggered terms. President Biden has less sway with the EEOC since he does not get to appoint all of the Commission right out of the gate. In fact, if he has only one four-year term, he will only get to nominate three of the five commissioners. However, the Commission nonetheless intends to take some regulatory action, particularly around pay issues likely to affect your work as a recruiter. 

All of which makes it imperative for TA departments to ask themselves: What records must we keep? And how should we keep them?

At ERE Digital, May 25-27, I’ll be moderating a panel, “The Write Stuff: How New Rules on Reporting and Documentation Will Reshape Your Work.” I’ll be talking with TA professionals about strategies to tackle evolving reporting requirements, key questions to ask vendors to stay compliant and maintain high hiring standards, and how to leverage reporting and documentation to improve your overall hiring process. In the meantime, here are some points to be aware of as the Biden administration aims to reform employment law:

Data Collection

The worst-kept secret in employment law is that the OFCCP is readying new regulations to collect more information on two major topics: LGBTQ+ status and pay. The EEOC will likely join in too.

The U.S. Supreme Court held that sexual orientation and gender identity are protected by Title VII of the Civil Rights Act of 1964 in June. This was a huge victory for LGBTQ+ advocates. While still more could be done to add protections, mainly through passage of the Equality Act, the OFCCP isn’t waiting on this legislation to start asking for LGBTQ+ status in the affirmative action programs it oversees. So expect to add LGBTQ+ status to your demographic questions that accompany your applications if you have an affirmative action program. 

Furthermore, the EEOC could follow suit and start asking for LGBTQ+ status on its EEO-1 form, but this is more likely to occur if the Equality Act is passed. 

Additionally, pay has been a hot button issue for the past few years as the gender wage gap has stagnated and a staggering number of women were cut out of the workforce during the pandemic. With at least one interest group calculating that women will not reach pay equity until 2059 without government intervention, the OFCCP and EEOC could both put into place new regulations on reporting pay to better assess what methods could be used to end the gap altogether. 

Previously, the EEOC pay reporting (known as Component II of the EEO-1 Report) had been widely criticized, and after the Trump Administration attempted to end the pay reporting requirement, a court intervened to continue the reporting requirement. With two reports — for 2019 and 2020 due this July — employers need to be ready to file.

Artificial Intelligence

The next hot button topic for both the OFCCP and the EEOC is the use of AI in employment. If you’ve seen the HBO documentary Persona, you know why. (You should definitely see it even if you have to “borrow” a password.)

In October 2016, the EEOC held its first hearing on the possible discriminatory effects of “big data” in employment settings. The chair of the EEOC at the time was Jenny Yang. If you haven’t heard yet, Jenny Yang is the new Administrator of the OFCCP. Administrator Yang is likely to be very interested in the technology recruiters are using, so expect the OFCCP to investigate the use of AI, especially given HireVue’s admission that its Insight tool had a disparate impact. 

Yang’s old stomping grounds, the EEOC, has also been asked to step in to regulate the use of AI. In January, 10 U.S. Senators sent a letter to the EEOC requesting information on how the agency intends to investigate disparities that can be created by the use of AI. While it is not clear how the EEOC intends to respond, recruiters need to scrutinize their AI vendors to best prepare for EEOC or plaintiff action in this area.

Want more insights from Kate about how to prepare for possible changes in employment law coming soon? Join her and a panel of TA pros at ERE Digital, May 25-27, for “The Write Stuff: How New Rules on Reporting and Documentation Will Reshape Your Work.” Register here to receive 10% off your ticket price. 

This article is part of a series called ERE Digital: Back to the Future.
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