Legal Alert: Upcoming EEOC Strategic Enforcement Priorities

Recently, the Equal Employment Opportunity Commission (EEOC) released its Draft Strategic Enforcement Plan (SEP) for Fiscal Years 2023-2027 for public comment. In effect, the SEP is a vehicle that sets forth EEOC’s enforcement priorities in furtherance of its commitment to “combat employment discrimination, promote inclusive workplaces, and respond to the call for racial and economic justice.” 

Taking a targeted and collaborative approach, the Plan, once finalized, will establish EEOC’s enforcement priorities for FY 2023-2027. These priorities include the following:

Eliminating Barriers in Recruitment and Hiring. The Plan specifically indicates that it will focus on examining practices and policies that discriminate against racial, ethnic, and religious groups as well as older workers, women, pregnant workers, LGBTQ+ individuals and employees with disabilities. Among the practices that will be subject to particular scrutiny are:

• The use of artificial intelligence and the extent to which it adversely affects the protected groups of focus
• Job advertisements that discourage certain demographic groups from applying
• Channeling or steering individuals into certain jobs due to their membership in one of the designated  groups of focus
• Limiting access to on- the -job training or job advancement

In addition. Industries with a demonstrated lack of diversity, particularly those that receive substantial federal investment are “of particular concern.”

Protecting Vulnerable Workers and those from Underserved Communities from Employment Discrimination.  Under the Plan , “vulnerable” workers include immigrants, people with developmental or intellectual disabilities, LGBTQ+ individuals, temporary workers, older workers, workers with low-wage jobs (particularly teen-aged), Native Americans as well as Alaskan Natives and persons with limited literacy or English proficiency.  Among these groups of employees, the EEOC will specifically focus on harassment, retaliation, job segregation, labor trafficking, discriminatory pay, and disparate working conditions.

Advancing Selected Emerging and Developing issues. These issues include:

• Qualification standards and inflexible practices or policies that discriminate against individuals with disabilities
• Protecting individuals affected by pregnancy and childbirth and specifically enforcing provisions of the Pregnant Workers Fairness Act under which employers are required to provide reasonable accommodations to pregnant women.
• Addressing discrimination influenced by  backlash in response to local, national or global events with the EEOC specifically noting discrimination against African-Americans, Jews, and Muslims as well as individuals of Arab, Asian and Middle-Eastern descent
• Employment discrimination related to the pandemic
• Technology related employment discrimination. This primarily refers to technology that enables or contributes to discrimination. For example, the use of software that incorporates algorithmic decision making or machine learning (including artificial intelligence) as well as the use of automated recruitment or other technology tools used in employment decisions.

Equal Pay. In examining practices and policies that contribute to pay disparities, the Plan specifically noted that enforcement will focus on pay secrecy policies, retaliating against employees that share pay information with their peers, relying on past salary history to determine current pay or requiring applicants to specify their salary when applying for a job.

Preserving Access to the Legal System. Enforcement in this area will focus primarily on practices and policies that discourage individuals from exercising their rights or impede EEOC’s investigatory powers, such as:

• Overly broad waivers, releases, non-disclosure agreements and non-disparagement agreements. This is an issue which federal legislation recently addressed in adopting the Speak Out Act  under which non-disclosure or non-disparagement clauses agreed to before a  dispute arises regarding sexual assault or sexual harassment are unenforceable
• Mandatory arbitration provisions. Similarly, federal legislation also addressed this issue in the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act which invalidates arbitration agreements that preclude a party from filing a lawsuit involving sexual assault or sexual harassment
• Employers failing to keep accurate employee records
• Retaliatory practices that dissuade employees from exercising their rights

Preventing and Remedying Systemic Harassment. In identifying this as an enforcement priority, the EEOC highlighted that harassment continues to be endemic in the workplace, noting that over 34 percent of employment discrimination charges from FY 2017-2021 included an allegation of harassment. In an effort to address future harassment, the EEOC will focus on monetary and equitable relief as well as prioritize anti-harassment practices, such as customized industry training.

For employers, in developing their strategic HR and talent plans, the EEOC’s Strategic Enforcement Plan provides a roadmap for compliance. It is also a reminder that there can be a vast divide between policy and practice. Ensure that policies align with practices, not only to mitigate potential legal liability but to send the message that your corporate values are consistent with your corporate culture.