EEOC's "not-so-sweet six" priorities, for 2024 and beyond

These six will get the EEOC's attention in 2024-28.

Last week, the U.S. Equal Employment Opportunity Commission released its Strategic Enforcement Plan for 2024-28. Strategic Enforcement Plans provide a helpful preview of the issues that will really grab the EEOC's attention (and, unfortunately for employers, result in "for cause" determinations, with big payouts in conciliation or costly, burdensome litigation).

Are you paying attention now? I thought so.

Here are the six "hot-button" items in the proposal:

No. 1: Hiring practices, and especially the use of artificial intelligence to screen and assess applicants. The SEP calls this "Eliminating Barriers in Recruitment and Hiring" and refers to old-fashioned discrimination, like "job advertisements that exclude or discourage certain protected groups from applying." But, let's face it -- when was the last time you saw a "Help Wanted-Male" ad?

(If you're under age 60, your answer is, "What the @#$(%$@ are you talking about?")

I think what the EEOC will really be looking at is the use of AI to screen candidates. Put very simply, the algorithms are sometimes based on successful hires of the past. That's great, except that if the successful hires tended to be from a certain sex or race or national origin, that can cause the algorithm to keep looking for the same types of people. Or the humans creating the algorithm may have their own biases that make their way into the AI. 

A low-tech priority will be "channeling." Some employers have been accused of "channeling" people into certain jobs based on their protected categories. Years ago, we had a client who was accused of doing this with farm workers. Everybody who wanted a job got one. But the men who got jobs allegedly got agricultural jobs, while the women who got jobs allegedly got less-lucrative "ag processing" jobs. You can't do that. (Our client didn't do it, either, but if it had, that would have been unlawful "channeling.")

A medium-tech priority is application processes that have barriers for applicants with disabilities. I'd like to think everyone has done this by now, but if not, do make sure that your processes are accessible to individuals with disabilities, and particularly to those with hearing, visual, or mobility impairments. You'll be glad you did.

No. 2: Protecting "vulnerable workers." The EEOC defines "vulnerable workers" as immigrant/migrant workers, and workers on temporary visas; workers with developmental or intellectual disabilities, or with mental illnesses; workers with records of arrest or conviction; "LGBTQI+ individuals"; temps; older workers; workers in low-wage jobs including teenagers; "survivors of gender-based violence"; Native Americans/Alaska Natives; and individuals who aren't proficient in the English language. I think that covers just about everybody.

No. 3: Scariest term in the English language -- "Emerging Issues." According to the SEP, "The EEOC will continue to prioritize issues that may be emerging or developing, including issues that involve new or developing legal concepts or topics that are difficult or complex." So, just what are these issues? you may ask. At the moment, the EEOC says it's these:

  • "Qualification standards and inflexible policies or practices that discriminate against individuals with disabilities." No surprise here.
  • Pregnancy and related conditions, now that the Pregnant Workers Fairness Act is in effect. (But also old-fashioned pregnancy discrimination, which violates Title VII, and discrimination based on pregnancy-related conditions that rise to the level of being disabilities, which violates the Americans with Disabilities Act.) No surprise here, either.
  • "Addressing discrimination influenced by or arising as backlash in response to local, national, or global events, including discriminatory bias arising as a result of recurring historical prejudices." The EEOC provides a few examples: "Discrimination, bias, and hate directed against religious minorities (including antisemitism and Islamophobia), racial or ethnic groups, and LGBTQI+ individuals . . .."
  • Discrimination associated with COVID-19, "including long COVID." (I'm still waiting for the first phone call from a client about an employee with long COVID.)
  • "Technology-related employment discrimination." Back to AI. No surprise here.

No. 4: Equal pay.
This is no surprise, either. Equal pay has always been a priority issue with the EEOC. BUT . . . the EEOC says that it is going to focus on employer policies, including "pay secrecy policies, discouraging or prohibiting workers from asking about pay or sharing their pay with coworkers," and considering salary history in determining pay. Consideration of salary history has been outlawed in a number of states, but I believe this may be the first time that the EEOC has taken the position that use of salary history information violates the federal anti-discrimination laws. Also, the EEOC will be looking at employers who take into consideration the applicant's pay expectations. Employers, conduct yourselves accordingly.

No. 5: Agency, schmagency, what's the diff? The EEOC's name for No. 5 is "Preserving Access to the Legal System." In the past, this focused on retaliation for filing a charge, providing truthful testimony, or making an internal complaint about discrimination. Who could have a problem with that? But now the EEOC says it will be scrutinizing "overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements," and certain mandatory arbitration provisions, in addition to garden-variety retaliation and record keeping violations. Gee. Sounds an awful lot like another agency that shall remain nameless that went off the deep end last March.

No. 6 (sure glad we're at the end!): Systemic harassment. The EEOC doesn't define "systemic harassment" very well, but it seems to be referring to "a widespread pattern or practice of harassment." As opposed to a single supervisor hitting on an employee he has the hots for. But individual claims could also qualify as "systemic" if they fall within the pattern or practice. And, of course, systemic harassment could include harassment based not only on sex, but also on race, national origin, religion, sexual orientation, gender identity, age, disability, pregnancy "and related conditions," and genetic information.

As you may already know (and surely have guessed by now if you didn't already know), the EEOC has a Democratic majority. So the EEOC's focus is not likely to become more employer-friendly for a while.

Off topic, how's that government shutdown coming?   ;-)

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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