Last month, the U.S. Equal Employment Opportunity Commission (EEOC) published its Strategic Enforcement Plan (SEP) for Fiscal Years 2024-2028. The SEP sets forth six enforcement priorities for the next several years. It provides essential information for employers as they consider how best to adhere to employment regulations and legal requirements. Below, we summarize the key priorities.
Protection of Vulnerable Workers and Persons from Underserved Communities from Employment Discrimination. While continuing to focus on unlawful recruitment, hiring policies, and discrimination based on sex, race, national origin, color, religion, age, and disability, the EEOC will also prioritize protecting vulnerable workers from employment discrimination. According to the EEOC, those workers are individuals who “may be unaware of their rights under equal employment opportunity laws, may be reluctant or unable to exercise their legally protected rights, and/or have historically been underserved by federal employment discrimination protections.” The SEP includes the following categories in its definition of vulnerable workers:
Here, the SEP specifically states that EEOC district offices and its federal sector program will identify vulnerable workers and underserved communities for appropriate focus. Employers are advised that vulnerable workers and underserved communities may vary based on location.
Artificial Intelligence (AI) in Hiring and Other Employment Decisions. The EEOC will focus on employers’ use of technology, including AI, to target job advertisements, recruit applicants, and make or assist in hiring and other employment decisions, practices, or policies.
This is not the first time the EEOC has emphasized employers’ compliance with anti-discrimination laws in the context of AI products. On May 12, 2022, the EEOC issued specific AI guidance relating to disability discrimination, and on May 18, 2023, issued guidance as to how existing Title VII requirements may apply to the assessment of adverse impact in employment selection tools[1] that use AI.
In August 2023, the EECO recorded its first-ever settlement in a case concerning AI in workplace discrimination. A tutoring company, iTutorGroup, was accused of illegally automatically screening out job applicants based on age and gender using an AI-powered hiring selection tool. iTutorGroup denied the allegations but paid $365,000.00 to a group of rejected applicants and agreed to adopt anti-discrimination policies to ensure compliance with relevant laws.
Given this recent settlement, the SEP, and businesses’ increasing reliance on AI in hiring and employment decisions, we expect an increase in litigation brought by both the EEOC and individual rejected job applicants. Moreover, legislation has been introduced in several states, including New Jersey, New York, and Illinois, to limit the use of automated employment decision tools (AEDT) in hiring.
As an initial matter, all employers and employment agencies are advised to review their current AI usage in hiring and employment decisions to ensure compliance with EEOC guidance and applicable laws. If outside vendors are involved, their compliance should also be required. Before such technology is implemented, AEDTs and all AI tools should be tested to confirm that they do not improperly result in a disparate impact on individuals with protected status. Testing must continue throughout the technologies’ use, and employment information should be monitored regularly so that changes can be made if and when disparate impacts are discovered.
Emerging and Developing Issues. The EEOC specified multiple issues that fall within this category of concerns, including (1) qualification standards and policies that discriminate against individuals with disabilities, (2) protection of workers affected by pregnancy, childbirth, or related medical conditions, (3) addressing discrimination arising in connection with current events and historical prejudices, including antisemitism and Islamophobia, and (4) employment discrimination associated with COVID, including long COVID.[2]
In connection with protecting workers affected by pregnancy, childbirth, or related medical conditions, employers are reminded of the Pregnant Workers Fairness Act (PWFA), which went into effect on June 27, 2023. The PWFA requires that employers provide “reasonable accommodations” to qualified employees and job applicants relating to childbirth, pregnancy, or other related medical conditions unless those accommodations cause the employer ‘undue hardships.” The public may submit comments to EEOC’s proposed rule by October 10, 2023. In addition to the PWFA’s requirements, the proposed rule sets forth further protections for covered workers. Employers should ensure compliance with the final rule to avoid EEOC charges and be reminded that the PWFA creates a private cause of action against an employer accused of a violation.
Advancing Equal Pay. While the EEOC will continue to combat all types of pay discrimination, employers should take note of the commission’s concerns about pay transparency, specifically “pay secrecy policies, discouraging or prohibiting workers from asking about pay or sharing their pay with coworkers, and reliance on past salary history or applicants’ salary expectations to set pay.” Numerous states have already passed pay transparency laws, and relevant legislation is pending in several more states. All employers should confirm that their job postings comply with applicable pay transparency laws and, in doing so, pay close attention to the scope of coverage of such laws when determining whether job postings require including a salary or hourly wage range.
Access to the Legal System. Here, the EEOC is concerned with employers who limit the ability of employees to exercise legal rights. Employers, already aware of the obvious ways in which they may not impede employee access to the legal system, must also avoid contract provisions that may be considered to be limitations on rights: “overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements; or unlawful, unenforceable, or otherwise improper mandatory arbitration provisions.” Employment contracts should be reviewed to ensure compliance and renegotiated where necessary, while future contracts should be created with EEOC enforcement in mind. Severance agreements must be considered as well.
Systemic Harassment. The EEOC will continue to address “sexual harassment and harassment based on race, disability, age, national origin, religion, color, sex (including pregnancy, childbirth, or related medical conditions, gender identity, and sexual orientation) or a combination or intersection of any of these.” The SEP clarifies that charges or litigation may be based on the allegations of an individual or small group of individuals as long as the allegations are related to a widespread pattern or practice of harassment. Employers are encouraged to institute anti-harassment programs and management training to prevent harassment from occurring in their workplaces.
Employers should use the EEOC’s SEP as a roadmap to navigate current and future employment procedures and regulations. Technological advancements and current events bring a new set of concerns to the EEOC and, thereby, to the policies and procedures required of employers. We will continue to monitor how public and private enforcement play out across the county.
[1] The Uniform Guidelines on Employee Selection Procedures, 43 Fed. Reg. 38,290 (August 25, 1978), define “a selection procedure” as any “measure, combination of measures, or procedure” if it is used as a basis for an employment decision.
[2] This list includes the use of technology discussed above.
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