by Nikki Howell
EEOC makes no secret as to the policies and practices most likely to trigger systemic action. Indeed, since 2012, EEOC has issued official Strategic Enforcement Plans as a framework for focusing its efforts on areas that EEOC considers most critical. In its most recent Strategic Enforcement Plan for 2024-2028, finalized on September 21, 2023, EEOC announced the following areas of emphasis:
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Eliminating Barriers in Recruitment and Hiring, including an emphasis on:
- underrepresentation of women and workers of color in certain industries, including construction, manufacturing, tech and finance
- those who are channeled or segregated into jobs or job duties based on membership in a protected group
- practices that limit access to work opportunities, such as advertising methods, screening tools, AI, denial of training or other limitations
- online systems that are difficult for disabled individuals to navigate
- construction, technology and other industries that historically lack diversity
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Protecting Immigrant, Migrant and Other Vulnerable Workers, including:
- immigrant and migrant workers
- people with developmental or intellectual disabilities
- individuals with arrest or conviction records
- LGBTQI+ individuals
- temporary workers
- older workers
- individuals employed in low wage jobs, including teenagers
- survivors of gender-based violence
- Native Americans/Alaska Natives
- persons with limited literacy or English proficiency
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Addressing Selected Emerging and Developing Issues[1], including:
- technology-related discrimination (employment decisions based on algorithmic decision-making, automated recruitment, selection, production, and performance management tools)
- qualification standards and inflexible policies or practices that discriminate against individuals with disabilities
- protection for those affected by pregnancy, childbirth, and related medical conditions and disabilities, as well as requests for reasonable accommodations related to same
- discrimination against groups that arise as a backlash in response to local, national, or global events, including antisemitism and “Islamophobia”
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Advancing Equal Pay for All Workers, including:
- investigating pay differences through directed investigations and Commissioner Charges
- challenging practices that it perceives to contribute to pay disparities, including employer policies and practices that encourage secrecy around pay, reliance on past salary history to set pay, and requiring applicants to disclose expected pay rates during the application stage
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Preserving Access to the Legal System, including:
- overly broad language for waivers, releases, non-disclosure and non-disparagement provisions in agreements
- unenforceable mandatory arbitration agreements
- failure to maintain applicant and employee records
- practices seen as retaliatory or discouraging protected activity
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Preventing and Remedying Systemic Harassment, including:
- Strong enforcement actions
- Promoting more training, tools and outreach
- Implementing more guidance
EEOC will implement this Plan, in part, by prioritizing charges that touch on these topics and prioritizing systemic cases and other litigation to eradicate perceived violations. EEOC is also increasingly focused on the collaboration between the investigatory and enforcement arms of the agency, as well as data sharing with other federal agencies like the Department of Labor and Department of Justice. EEOC has additionally recognized the importance of data-driven decision-making and is investing resources to improve technology for collecting, analyzing, using and sharing the data it receives from employers and other federal agencies. We anticipate a corresponding uptick in Commissioner Charges, directed investigations, systemic investigations, pattern or practice lawsuits, and class action litigation related to the topics above.
Now more than ever, it is imperative for employers to be cognizant of the issues most likely to draw the attention and scrutiny of EEOC investigators. Once charges are red-flagged by an investigator, the scope of their corresponding investigations may quickly escalate to national and systemic levels, which not only consume vast company resources but also frequently lead to large scale litigation, including class, pattern or practice or disparate impact claims. While the EEOC is not required to comply with Fed. R. Civ. P. 23 class certification requirements, the EEOC can and frequently files large enforcement actions known as pattern or practice cases where relief is sought for dozens, if not, hundreds of employees and applicants. Because these enforcement actions look and feel like a class action, employers should be cautious in the implementation of employment policies or new technologies (such as AI) that could affect large groups of employees. These are the types of cases that the EEOC is targeting with its systemic agenda.
Employers would also be wise to follow EEOC’s approach of prioritizing and quickly addressing issues related to these topics as they arise. Self-auditing and prompt action may allow employers to resolve potential issues before a charge is filed.
[1] EEOC views topics in this category as fluid and developing, such that the agency intends for these topics to change and evolve during the timeframe the Strategic Enforcement Plan is in time (2024-2028).
