Employers Take Notice: EEOC Releases Strategic Enforcement Plan

The following article first appeared on Carmody Torrance Sandak and Hennessey’s Carmody@Work blog. It is reposted here with permission. 

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The Equal Employment Opportunity Commission is a federal agency responsible for enforcing federal laws that make it illegal to discriminate, harass and retaliate against job applicants or employees based on a protected class, such as race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information.

On Sept. 21, 2023, the EEOC released its Strategic Enforcement Plan for fiscal years 2024-2028. 

The SEP establishes the agency’s top priorities for the coming years. 

The EEOC identified six subject matter priorities that they will scrutinize to determine if individuals are being discriminated against based on a protected category.

1. Recruitment and Hiring Practices

Recruitment and hiring practices, including employer use of artificial intelligence to target job advertisements, recruit applicants or make or assist in hiring decisions; channeling individuals into certain jobs; policies that limit on-the-job training, advancement opportunities and temp-to-hire positions; policies that limit employees exclusively to temporary work when permanent positions are available; and reliance on restrictive application processes, such as online systems, that are difficult for certain individuals to access.

The EEOC will also focus on the underrepresentation of women and workers of color in certain industries and sectors, such as construction, manufacturing, high tech, STEM, finance, and industries that benefit from substantial federal investment.

2. Discrimination of Vulnerable Workers

Discrimination of vulnerable workers including claims of unequal pay and disparate working conditions. Such workers include immigrants and migrants, people with developmental or intellectual disabilities, individuals with criminal records, LGBTQI+ individuals, temporary workers, older workers, low wage earners, survivors of gender-based violence, Native Americans, and persons with limited literacy or English proficiency.

3. Emerging and Developing Issues

Addressing emerging and developing issues including policies and practices that discriminate against workers with disabilities; protecting workers affected by pregnancy, childbirth and related conditions; addressing discrimination influenced by or arising as backlash in response to news events such as bias that stems from recurring historical prejudices; COVID-19 discrimination; and the use of technology, including AI, in making employment decisions.

4. Pay Discrimination

Pay discrimination based on gender or any other protected category.

The EEOC will focus on policies and 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 sharing their pay with coworkers, and reliance on past salary history or an applicants’ salary expectations to set pay.

5. Legal System Access

Preserving access to the legal system including focusing on overly broad waivers, releases, non-disclosure agreements, non-disparagement agreements, mandatory arbitration provisions, employers’ failure to keep required applicant and employee data, and retaliatory practices that could dissuade employees from exercising their rights under employment discrimination laws.

6. Systematic Harassment

Preventing and remedying systemic harassment on any protected basis. The EEOC will give priority to complaints filed by an individual or a small group that claim a widespread pattern or practice of harassment.

The EEOC also will continue to focus not only on securing appropriate monetary relief, but also targeted equitable relief to prevent future harassment such as promoting comprehensive anti-harassment programs and practices, including training tailored to the employer’s workplace and workforce.

Employers should be cognizant of these enforcement priorities and proactively address any policies and procedures that the EEOC may scrutinize based on its Strategic Enforcement Plan.

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About the author: Nick Zaino is a partner at Carmody Torrance Sandak & Hennessey and co-leader of the firm’s Business Services Group. Zaino practices primarily in the area of labor and employment law and has extensive experience counseling, representing, and training employers on all aspects of the employment relationship.