On January 10, 2023, the Equal Employment Opportunity Commission (“EEOC”) released its Draft Strategy Enforcement Plan (“SEP”) for fiscal years 2023-2027. This document describes the EEOC’s top priorities in the coming years, making it important information for employers and human resources professionals across the country.
The Draft SEP sets out the EEOC’s six priorities for the coming years:
- Eliminating barriers in recruitment and hiring;
- Protecting vulnerable workers and persons from underserved communities from employment discrimination;
- Addressing emerging and developing issues;
- Enforcing equal pay laws;
- Preserving access to the legal system; and
- Preventing harassment through systematic enforcement and targeted outreach.
The guidance does highlight an emphasis in coming years on the role of artificial intelligence in employment decisions. In particular, with respect to the first category listed above, the Draft SEP states that the EEOC will focus on “the use of automatic systems, including artificial intelligence or machine learning, to target advertisements, recruit applicants, or make or assist in hiring decisions where such systems intentionally exclude or adversely impact protected groups.” The Draft SEP also expressly emphasizes the “lack of diversity” in both the construction and technology industries, noting the EEOC’s priority will typically involve systematic cases, though claims by an individual or small group may qualify for enforcement focus if it raises a policy, practice, or pattern of discrimination. Consistent with other recent pronouncements from the EEOC, this Draft SEP demonstrates a heightened priority on remedying and preventing discrimination from automated and electronic screening tools used in hiring practices and employment decisions.
As for the second category, the Draft SEP expands the “vulnerable worker priority” to include categories of workers who, according to the EEOC, “may be unaware of their rights . . . or reluctant or unable to exercise their legally protected rights.” These categories include workers with intellectual and developmental disabilities, individuals with arrest or conviction records, LGBTQI+ individuals, pregnant workers, individuals with pregnancy-related medical conditions, temporary workers, older workers, individuals employed in low-wage jobs, and persons with limited literacy or English proficiency. The Draft SEP proposes that district EEOC offices and the agency’s federal sector program identify vulnerable workers and underserved communities in their districts or within the federal sector for focused attention. Employers should be aware that the “vulnerable workers” focused on within this category may vary based on location.
The SEP’s third category includes a focus on (1) qualification standards and inflexible policies or practices that discriminate against individuals with disabilities; (2) protecting individuals affected by pregnancy, childbirth, and related medical conditions under the Pregnancy Discrimination Act, the Americans with Disabilities Act, and the newly enacted Pregnant Workers Fairness Act; (3) employment issues relating to backlash in response to local, national, or global events; and (4) “employment discrimination associated with the COVID-19 pandemic.”
The Draft SEP’s fourth category sets out a focus on pay discrimination based on any protected category. It also states that the EEOC may use “Commissioner Charges and directed investigations” to enforce equal pay. Notably, the EEOC has been hesitant to use Commissioner Charges in the past, as they comprise less than 1% of annual charge volume since 2015. However, Commissioner Charges may become necessary to identify and remedy discrimination based on artificial intelligence or machine learning.
Finally, the Draft SEP’s fifth and sixth categories remain largely the same as prior SEPs. The focus for the fifth category will continue to identify and target (1) overly broad waivers, release, non-disclosure and non-disparagement agreements; (2) improper mandatory arbitration provisions; (3) employers’ failure to keep proper records; and (4) improper retaliatory practices. As for the sixth category, the EEOC will continue to promote comprehensive anti-harassment programs and policies.
The EEOC will vote on a final version of the SEP following a public notice and comment period, which concluded on February 9, 2023.