EEOC Releases its Strategic Enforcement Plan for Fiscal Years 2024-2028
Ashley Graves, Associate
The Equal Employment Opportunity Commission (“EEOC”) released its Strategic Enforcement Plan (“SEP”),[1] detailing issues the EEOC will prioritize for enforcement purposes in the coming years.
Key Topics of Future EEOC Enforcement
As set forth in its SEP, the following are the EEOC’s subject matter priorities for the upcoming term:
1) eliminating barriers in recruitment and hiring;
2) protecting vulnerable workers and persons from underserved communities;
3) addressing certain selected emerging and developing issues, with an eye towards issues involving new or developing legal principles or topics that are otherwise difficult or complex;
4) advancing equal pay for all workers;
5) preserving access to the legal system; and
6) preventing and remedying systemic harassment.
Specifically, regarding the first priority, the EEOC will focus on recruitment and hiring practices that discriminate on any unlawful basis, including 1) issues arising from the use of technology (including artificial intelligence) in the recruitment or hiring process that results in adverse impacts to protected groups;[2] 2) job advertisements that discourage or exclude protected groups from applying; 3) steering or segregating individuals into specific jobs or job duties based on protected characteristics; 4) policies and practices that limit access to job training or advancement opportunities based on protected characteristics; 5) practices that limit qualified employees to temporary work on a prohibited basis when permanent positions are available; 6) online systems that pose difficulties for disabled individuals, or are not easily accessible by other protected groups; and 7) the use of screening tools or requirements that disproportionately affect workers on a protected basis.
Regarding the second priority, the EEOC defines “vulnerable workers” as those who may be unaware of their rights or may be reluctant or unable to exercise their legally protected rights. Factors such as immigration status, language barriers, education level, economic circumstances, geographic location, isolated work conditions, age, disability status, societal stigma, or lack of employment experience make workers “particularly vulnerable to discriminatory practices or policies.” Thus, the EEOC predicts that indigenous peoples, agricultural workers, workers on temporary visas, or individuals with arrest or conviction records may be areas of focus.
Regarding the third priority, developing or emerging issues, the EEOC will prioritize qualification standards; workers affected by pregnancy or related medical conditions; discrimination influenced by or arising as backlash in response to local, national, or global events; discrimination associated with the long-term effects of COVD-19; and technology-related employment discrimination.
The EEOC also plans to advance equal pay for all workers by targeting employer practices that may impede equal pay or contribute to pay disparities such as pay secrecy policies; discouraging or prohibiting workers from asking about pay or discussing pay with coworkers; and reliance on past salary history or an applicant’s salary expectations to set pay.
Workplace Harassment Policies and Employer Considerations
In addition to the above issues, the last stated priority of workplace harassment was identified in particular as a prevalent issue necessitating “strong enforcement” by the EEOC. As such, employers are encouraged to be proactive in combating harassment by implementing comprehensive anti-harassment programs and practices or revisiting those already in place. Employers should also be cognizant that the EEOC, in fulfilling its fifth priority, will target policies or practices that deter or prohibit filing charges with the EEOC or cooperating freely in EEOC investigations or litigation. Thus, employers should be wary of overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements; unlawful or unenforceable mandatory arbitration provisions; failure to keep applicant and employee data and records required by statute or EEOC regulations; and retaliatory practices that may dissuade employees from exercising their rights under anti-discrimination laws.
Campbell Litigation is available to assist with these and other equal employment opportunity issues as they arise, and to assist employers with ensuring their workplace policies and practices are otherwise compliant with federal and state laws.
[1] https://www.eeoc.gov/strategic-enforcement-plan-fiscal-years-2024-2028?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=
[2] See also https://www.rockymountainemployersblog.com/blog/2023/6/1/eeoc-releases-guidance-on-employer-use-of-artificial-intelligence-to-avoid-liability-under-title-vii