By: Christopher Kelleher, Rachel See, Christopher DeGroff, and Andrew Scroggins

Seyfarth Synopsis: An essential read for any employer, the EEOC’s final Strategic Enforcement Plan (SEP), was released on September 21, 2023. The SEP identifies the agency’s enforcement priorities for the next five years, Fiscal Years 2024-2028. The SEP indicates that the agency intends to aggressively pursue its enforcement agenda through Commissioner Charges, directed investigations, and litigation involving systemic harassment and discrimination. The new plan also suggests a new direction for the agency on a number of key subject matter priorities.

The EEOC has released its new Strategic Enforcement Plan (“SEP”) for Fiscal Years 2024-2028. The SEP lays out the EEOC’s enforcement priorities to focus and coordinate the agency’s work over multiple years “to have a sustained impact in advancing equal employment opportunity.”

As we previously covered, in January 2023 the EEOC posted a draft of the SEP for public comment. For almost a year, since November 2022, the five-member Commission was evenly divided politically, with two Democrats and two Republicans. However, last month, in August 2023, Democrat Commissioner Kalpana Kotagal was sworn in, giving the Democrats a 3-2 majority on the Commission for the first time during the Biden Administration.

While many aspects of the Commission’s operations are advanced on a bipartisan basis, the timing of the release of the final SEP, combined with the lengthy interval since public comments were accepted, suggests that EEOC Chair Charlotte Burrows may have needed a third Democrat vote to get her SEP across the finish line. The launch of the SEP, coupled with last month’s adoption of the EEOC Strategic Plan, suggests that Commissioner Kotagal is rapidly getting up-to-speed, and that Chair Burrows is beginning to use her Democrat majority. The eventual release of the Commission vote on the SEP may tell us more.[1]

But political wrangling aside, the true headline is what the EEOC will now be targeting. In today’s SEP, the EEOC has again identified six subject matter priorities. Employers can expect that the EEOC will conduct a more aggressive enforcement agenda with respect to each of these priorities:

  • Eliminating Barriers in Recruitment and Hiring. The EEOC will focus on discriminatory recruitment and hiring practices, with a special emphasis on the use of technology, AI, and machine learning used in job advertisements, recruiting, and hiring decisions. The new SEP emphasizes an employer’s use of all technology (not just “automated systems”) in hiring and recruitment as an area strategic focus. The EEOC has, historically, focused on recruiting and hiring in part because private plaintiffs’ counsel have been unwilling to champion large scale hiring cases due to cost and challenges identifying potential “victims.”
  • Protecting Vulnerable Workers from Underserved Communities. The EEOC will expand its focus on protecting vulnerable workers, and the agency has expanded the categories of workers categorized as “vulnerable and underserved.” Vulnerable workers include, among other groups: immigrant and migrant workers; workers with developmental, intellectual, and mental health related disabilities; LGBTQI+ individuals; individuals employed in low wage jobs, including teenage workers; and survivors of gender-based violence. The EEOC has identified these groups, among others, as deserving special protection because they may be unaware of their rights under EEO laws, and/or may be reluctant or unable to exercise their rights.
  • Addressing Selected Emerging and Development Issues. The EEOC states that it will continue to prioritize emerging or developing issues, and it has updated the emerging and developing issues priority to include protecting workers affected by pregnancy, childbirth, or related medical conditions, including under the Pregnant Workers Fairness Act. This priority will also focus on addressing discrimination “influenced by or arising as backlash in response to local, national, or global events.” Notably, the new SEP dials back the scope of the EEOC’s prior focus on Covid-19. Under the SEP, only “Long Covid” is considered an area of strategic emphasis. This is important in part because, while the EEOC and its local counterparts have fielded thousands of charges of discrimination relating employees’ religious and/or medical exemption requests from employers’ Covid-19 vaccination mandates, vaccination-related enforcement is not referenced in the SEP.
  • Advancing Equal Pay for All Workers. The EEOC will continue to use directed investigations and Commissioner Charges to advance enforcement of pay discrimination laws, including the Equal Pay Act and Title VII. The EEOC further promises that it will focus on employer practices that may impede equal pay, or contribute to pay disparities, such as secrecy policies, discouraging or prohibiting workers from sharing pay information, and “reliance on past salary history or applicants’ salary expectations to set pay.” The recently announced partnership between the EEOC and the Department of Labor provides the agency an additional source for information that could fuel investigations in this area.
  • Preserving Access to the Legal System. The EEOC will also focus enforcement on workplace policies or practices that limit employees from exercising their rights, including any policies that deter or prohibit filing charges with the EEOC or cooperating freely in EEOC investigations. Particularly important for employers: the EEOC warns it will focus on overly broad waivers, releases, non-disclosure agreements, and non-disparagement agreements; unlawful or improper mandatory arbitration provisions; employers’ failure to keep required applicant and employee data and records; and retaliatory practices that could dissuade employees from exercising their rights.
  • Preventing and Remedying Systemic Harassment. Finally, the EEOC will focus on remedying harassment, both in-person and online. As part of this priority, the EEOC will focus on promoting comprehensive anti-harassment programs and practices.

The SEP notes that the EEOC also plans to “support employer efforts to implement lawful and appropriate diversity, equity, inclusion, and accessibility (“DEIA”) practices that proactively identify and address barriers to equal employment opportunity, help employers cultivate a diverse pool of qualified workers, and foster inclusive workplaces.” This language suggests that the EEOC may anticipate a battle over affirmative action in the workplace in the wake of the Supreme Court’s Fair Admissions decision.

Implications for Employers

The importance of the new SEP is, without hyperbole, profound.  The EEOC’s SEP identifies the types of claims the EEOC’s front-line personnel are searching for when they are investigating charges, and what types of litigation the EEOC will aggressively pursue. While the EEOC will continue its routine charge-investigation processes for all charges, claims identified as “strategic” – i.e. falling into one of the categories set forth in the SEP – will receive increased attention from the EEOC’s investigators and litigators. Additionally, the EEOC is likely to conduct outreach to employees informing them about their rights, and encouraging them to file charges in these areas designated for strategic emphasis. The new SEP, propelled by demonstrable steps to move resources to these goals, promises to have a significant impact on how the Commission interacts with – and litigates against – employers. 

[1] Votes taken by the Commission are now publicly posted on the EEOC’s website, but there is a delay between the individual Commission votes and the posting on the EEOC website. So, absent further comment from the EEOC or media leaks, we will likely have to wait until the end of October, when September votes are expected to be posted, to learn what the vote on the SEP actually was.

By: Rachel V. See, Christopher J. DeGroff, and Andrew L. Scroggins

Seyfarth Synopsis: The EEOC and the Department of Labor Wage Hour Division (WHD) have taken an important step toward inter-agency coordination, committing to information sharing, joint investigations, training, and public outreach. The Memorandum of Understanding between the EEOC and DOL contemplates referring complaints between the two agencies, a move that should catch the attention of all employers.  What is more, the agencies have agreed to share swaths of information, including EEO-1 reports and FLSA records.  This coordination will not just occur at the agency leadership level – the MOU enables front-line personnel from both agencies to receive shared information quickly and expeditiously. This enhanced and elevated level of agency cooperation should be top of mind for all employers.

On September 14, 2023, the EEOC and WHD announced that they had entered into a Memorandum of Understanding enabling information sharing, joint investigations, training, and outreach. The MOU now empowers the agencies’ field staff to coordinate efforts on both individual matters and larger investigations.

The EEOC’s press release, and some initial media coverage, have focused on the agencies’ coordinated efforts relating to the recently enacted PUMP Act (extending to more nursing employees the rights to receive break time to pump and a private place to pump at work) and the Pregnant Workers Fairness Act (requiring reasonable accommodations for limitations related to pregnancy, childbirth, or related medical conditions). But the MOU’s information-sharing and other contemplated coordinated activity provisions go far beyond those statutes, covering a broad range of activities, touching on all aspects of EEOC and WHD jurisdiction.

For example, the MOU explicitly describes that each agency will make complaint referrals to the other, and that the two will share complaint or investigative files, EEO-1 reports and FLSA records, and “statistical analyses or summaries,” and that the agencies “will explore ways to efficiently facilitate” the data sharing.

Information sharing under the MOU is not limited to just top-level agency officials in Washington, DC; leadership from each agency’s District (or Regional) offices may request information without the need to first obtain approval from HQ in Washington, DC. Importantly, the EEOC District Directors and Regional Attorneys also may designate other EEOC employees to make the request. This means that front-line EEOC staff involved in enforcement and litigation can quickly access a wide range of information held by WHD. It is also noteworthy that the MOU allows any EEOC Commissioner to directly request information from WHD, without first channeling the request through EEOC career staff. This is significant because it enables EEOC Commissioners from different political parties than the Chair to obtain information directly from WHD.

But the elephant lurking in the corner of the room may be the potential for broad-based data-sharing between the two agencies. The MOU specifically contemplates that the EEOC may share employer EEO-1 reports with WHD. Notably, Title VII prohibits the EEOC from disclosing EEO report data to the public, but the MOU does not bind the WHD in the same way. Instead, the WHD agrees to “observe” Title VII’s confidentiality requirements.

Whether these provisions of the MOU might be sufficient to ward off a FOIA request directed to WHD may, at some point, be tested in the courts. WHD’s sibling agency at the Department of Labor, OFCCP, has been involved in contested FOIA litigation seeking large volumes of EEO-1 reports in OFCCP’s possession. For more information about this litigation, see our most-recent client update on OFCCP’s release of EEO-1 reports.

Implications for Employers

Employers can expect the MOU to lead to more information sharing between the EEOC and WHD when it comes to individual charges and investigations. (The MOU contains a high-level framework for coordinated investigations involving the same employer.)  More concerning is the potential for data sharing to fuel broader systemic investigations. Indeed, as we recently wrote, the EEOC’s five-year Strategic Plan announced just last month that it is committing to developing these “big cases,” in the hope that this will enable the EEOC “to increase its impact on dismantling discriminatory patterns, practices, or policies.” The ability to gather additional data through this partnership with the WHD adds another powerful tool to the EEOC’s investigative powers. 

Stay tuned to the Workplace Class Action Blog for more EEOC analysis, as the Seyfarth team continues to analyze all EEOC activity and prepares to publish its annual EEOC-Initiated Litigation Report.

For more information on the EEOC and WHD, and how both may affect your business, contact the authors or a member of Seyfarth Shaw’s Complex Discrimination Litigation Group or Wage Hour Litigation Practice Group.

By: Christopher DeGroff, James Nasiri, and Rachel See

Seyfarth Synopsis: On August 22, 2023, the Equal Employment Opportunity Commission officially adopted its new Strategic Plan for Fiscal Years 2022-2026. The Strategic Plan outlines the Commission’s major goals and objectives over the coming years, and also sets forth various performance metrics under which its activities will be measured. Particularly notable for employers is the EEOC’s greater emphasis on its systemic investigation program, its desire for increased compliance monitoring, and commitments to improve its charge intake processes. Given that the Strategic Plan describes elements of the EEOC’s enforcement approach in detail, it is a must-read for employers. This is especially true for the FY 2022-2026 Strategic Plan, which is noteworthy not only for the priorities that the Commission discusses, but also for those anticipated topics that it does not.

The Significance of the EEOC’s Strategic Plan

The EEOC is required by statute to submit to the White House and Congress a five-year strategic plan identifying the agency’s major goals and objectives, how the agency intends to achieve those goals and objectives, and how it will measure its progress towards those goals.

The EEOC outlines its enforcement strategies through two separate documents: its Strategic Plan, and its Strategic Enforcement Plan (“SEP”). Despite the similarity in their titles, these plans serve two distinct purposes. The SEP lays out the Commission’s specific priorities by highlighting certain areas of law or groups of workers that it will aim to address over the new four years. The EEOC is currently accepting public comments on its proposed SEP for FYs 2023-2027.

On the other hand, the Strategic Plan explains how the EEOC will achieve its strategic mission, including executing on the priorities contained in the SEP. In the words of the EEOC, “[t]he Strategic Plan serves as a framework for achieving the EEOC’s mission to prevent and remedy unlawful employment discrimination and advance equal employment opportunity for all.” The Commission released a draft of its new Strategic Plan in November 2022 (see our blog post on the proposed Plan HERE), and on August 22, 2023, it announced that it had officially adopted its Strategic Plan for FYs 2022-2026.

Strategic Goal 1: Combat and Prevent Discrimination Through Strategic Application of the EEOC’s Enforcement Authority

While the EEOC’s Strategic Plan is distinct from the SEP, the first goals discussed in the Strategic Plan for FYs 2022-2026 focus on the strategic application of the Commission’s enforcement authority. Three noteworthy goals relate to the EEOC’s systemic investigations, its monitoring of compliance with conciliation agreements, and the challenges it has been facing with charge intake.

  • Emphasizing systemic investigations and litigation.

The EEOC’s Strategic Plan emphasizes the EEOC’s systemic program. The EEOC is committing to devoting additional resources to investigating and litigating systemic claims. The EEOC has defined systemic discrimination cases as matters involving a pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area. The Strategic Plan commits to developing these “big cases,” in the hope that refocusing its efforts on these types of cases will enable the EEOC “to increase its impact on dismantling discriminatory patterns, practices, or policies.” And while the SEP sets forth the EEOC’s enforcement priorities, the Strategic Plan makes sweeping statements about where it will be looking to develop systemic charges, promising, “The Commission is committed to tackling systemic employment discrimination in all forms and on all bases.”

There are two immediate tangible items that will flow from this commitment to the EEOC’s systemic program. First, every year that this Strategic Plan is in effect, the EEOC has committed to conducting training to all field staff on identifying and investigating claims of systemic discrimination, and it expects that at least 90% of its investigators and trial attorneys will participate in this annual training.

Second, the EEOC plans to hire “at least two dedicated Enforcement Unit systemic staff members” at each District Office. While some District Offices already have dedicated systemic staff, having additional dedicated systemic staff in each District Office will unquestionably help the EEOC identify and investigate claims of systemic discrimination. Nevertheless, the commitments in the Strategic Plan will not necessarily result in new and immediate hires, as the EEOC only commits to meeting this hiring goal by the end of FY2026.

  • Monitoring conciliation agreements

The EEOC’s Strategic Plan also commits to “improved monitoring” of conciliation agreements. The Strategic Plan emphasizes that the successful conciliation agreements that are negotiated to resolve charges of discrimination before litigation routinely include targeted, equitable relief in addition to relief for the charging party and aggrieved individuals. The EEOC asserts that greater monitoring of the targeted, equitable relief in conciliation agreements is “critical to the EEOC’s ability to ensure workplaces are free from discrimination after the EEOC makes a finding of discrimination.”

But the EEOC’s Strategic Plan does not explain what, exactly, this “improved monitoring” will entail, or what additional resources its enforcement staff will be committing to compliance monitoring. The Strategic Plan simply requires the EEOC to “report on enhancements” to its compliance monitoring program, on an annual basis. The EEOC is also silent on whether this improved monitoring will extend to non-monetary relief included in matters resolved post-litigation in Consent Decrees.

  • Charge intake improvements

The EEOC also emphasized the EEOC’s commitment to “improving and expanding access to intake services.

In October 2022, the U.S. Government Accountability Office (“GAO”) issued a report finding notable inconsistencies in the EEOC’s intake efforts. The GAO report observed that the EEOC was not monitoring the length of the EEOC’s charge “intake” process across its many field offices. (The GAO report defined the “intake” process as starting when an individual files an inquiry, and ending when EEOC staff interviewed the individual about the alleged incident.) The GAO report found that there was wide variance in the length of the intake process. In its evaluation of data from the EEOC’s 53 field offices from FY 2018 to FY 2021, GAO found that the length of time varied significantly from office to office, with the  fastest office averaging 11 days from inquiry to intake and the slowest office averaging 111 days  in FY 2021.

The EEOC’s intake challenges have also been the subject of Congressional scrutiny and Republican oversight.  In December 2022, Representative Virginia Foxx, Ranking Member on the House Committee on Education and Labor, and Representative Russ Felcher, Ranking Member on the House Education Subcommittee on Civil Rights and Human Services, urged the EEOC to incorporate the GAO report’s recommendations into its strategic plan.

The GAO report recommended that the EEOC monitor field office data on the length of the intake process, in order to help it support offices that take longer to complete the process. In its Strategic Plan, the EEOC commits to “identify technological solutions and other resources to improve and expand accessibility” to intake services by FY23 – i.e., by the end of the current fiscal year. Beyond that, the EEOC is committing to “make yearly progress” in improving the availability of intake interview appointments, but it does not commit in the Strategic Plan to specific goals for speeding up intake, or to identify specific additional resources that will be deployed to aid in this process.

Nevertheless, given the GAO’s recommendations, ongoing scrutiny from Congress, and the commitments in the EEOC’s Strategic Plan, employers can expect that the EEOC field offices that have been struggling with long wait periods before intake interviews are conducted will be feeling increased pressure to show progress in speeding up intake.

Strategic Goal 2: Prevent Discrimination and Advance Equal Opportunities Through Education and Outreach

The Commission’s second strategic goal emphasizes its education and outreach efforts. These efforts go to both educating individuals regarding their rights, and assisting employers, federal agencies, unions, and staffing agencies to prevent discrimination and effectively resolve EEO issues.

The EEOC addresses not only its education and outreach efforts, but also the populations receiving such services. The Strategic Plan emphasizes the importance of providing educational resources to vulnerable communities, such as employees who are new to the workforce, immigrants, or migrant workers. On the business side, the Plan also notes that “underserved segments of the employer community, including small, new and disadvantaged businesses” must receive training programs to assist with compliance. As part of this strategic goal, the EEOC also indicates that it will be looking to revise “priority” sub-regulatory guidance and resources, and to promote “promising practices” that employers can adopt to prevent discrimination in the workplace.

Strategic Goal 3: Strive for Organizational Excellence

The EEOC’s third and final strategic goal is to pursue organizational excellent through its people, practices, and technology. Key objectives here include: (1) achieving a culture of accountability, inclusivity, and accessibility; and (2) aligning resources with priorities to strengthen intake, outreach, education, enforcement, and service to the public to protect and advance civil rights in the workplace.

While these goals might appear to be -internal only, one significant aspect is the EEOC’s ongoing progress regarding the modernization of its charge/case management system, now called ARC (or the Agency Records Center). The Strategic Plan includes the agency’s success in modernizing this system. While many EEOC external stakeholders have already seen aspects of ARC in action, the Strategic Plan commits the agency to linking ARC to “new and redesigned digital services for the agency’s multiple external constituencies, including for charging party attorney representatives”. The agency also commits to leverage “the use of data, analytics, and information management to support, evaluate, and improve the agency’s programs and processes.” 

Using these tools, EEOC management will have greater visibility into the progress of investigations and litigation, and may better be able to exert influence over individual offices or matters.

Implications for Employers

The EEOC’s FY 2022-2026 Strategic Plan contains some key takeaways for employers. Probably most importantly, the Strategic Plan expresses the EEOC’s intent to ramp up its efforts in investigating and litigating matters identified as involving “systemic” issues. This priority will be reinforced not only by widespread internal training, but also by an eventual hiring increase that will allow EEOC District Offices to each have their own units tasked with investigating systemic discrimination. The Commission has filed 13 systemic lawsuits in each of the last two fiscal years, and it will be interesting to see whether the EEOC’s increased systemic commitments will result in additional systemic lawsuits being filed in FY 2023 and beyond.

Stay tuned to the Workplace Class Action Blog for more EEOC analysis, as the Seyfarth team continues to analyze all EEOC activity and prepares to publish its annual EEOC-Initiated Litigation Report.

For more information on the EEOC or how the Commission’s Strategic Plan may affect your business, contact the authors – Christopher DeGroff, James Nasiri, and Rachel See – or a member of Seyfarth Shaw’s Complex Discrimination Litigation Group.

By Danielle Kays and James Nasiri

Seyfarth Synopsis: In February 2023, the Illinois Supreme Court issued a landmark opinion in Cothron v. White Castle finding that claims under the Illinois Biometric Information Privacy Act (“BIPA”) accrue each time a private entity scans or transmits an individual’s biometric data. (Seyfarth’s analysis of this decision can be found HERE.) Defendant White Castle promptly filed a petition for rehearing, arguing that the Court incorrectly interpreted the Act and failed to consider practical factors concerning the amount of damages plaintiffs would now be entitled to under BIPA. In a blow to Illinois businesses, on July 18, 2023, the Court denied White Castle’s petition for rehearing and upheld the standard that BIPA claims accrue upon each scan or transmission.

Illinois Supreme Court Relies on Prior Reasoning in Denying the Petition for Rehearing

As a brief background, Plaintiff Cothron was a manager at a White Castle store in Illinois, and she sued the Company alleging that its fingerprint-scanning system used for payroll purposes violated Section 15(b) and (d) of BIPA. White Castle moved to dismiss Plaintiff’s Complaint as time-barred on the grounds that Plaintiff’s claims accrued in 2004 when she was hired, but Plaintiff responded that her claims accrued every time she scanned her fingerprint. This issue eventually went up to the Illinois Supreme Court, and as we discussed in our February blog post, the Court held that Section 15(b) and (d) claims accrue each time an entity captures or transmits an individual’s biometric identifier.

In its petition for rehearing, White Castle primarily argued that the Illinois Supreme Court erred in its interpretation of the relevant BIPA provisions. More specifically, White Castle highlighted the phrase “unless it first” within Section 15(b), contending that this language suggests that the acts of collecting or capturing biometric data can only happen at one singular point in time. Along these same lines, White Castle took the position that Section 15(d) refers to “the disclosure of biometrics by one party to a new, third party—said differently, a party that has not previously possessed the relevant biometric identifier or biometric information.” According to White Castle, a “transmission” under Section 15(d) can also only occur one time.

The Illinois Supreme Court firmly rejected White Castle’s statutory arguments, just as it did in February, without offering any new analysis. By relying on its prior ruling, the Court thus determined that actions like “collecting,” “capturing,” and “disclosing” can occur more than once, especially given that White Castle had to scan and analyze an employee’s fingerprint each time they needed computer or pay stub access. The Court also copied its previous analysis in rejecting White Castle’s practical argument concerning the potential for massive damages awards of BIPA, again stating that “where statutory language is clear, it must be given effect, ‘even though the consequences may be harsh, unjust, absurd or unwise.’”

Judge Overstreet Issues a Stark Dissent

While the majority did not write a new opinion when it denied White Castle’s petition for rehearing, Judge Overstreet – joined by Judges Theis and Holder White – issued a fresh dissent. In the dissent, Judge Overstreet focused more on practical and constitutional concerns rather than analyzing the statutory language. According to the Judge Overstreet, the majority’s holding “subverted the intent of the Illinois General Assembly, threatens the survival of businesses in Illinois, and consequently raises significant constitutional due process concerns.”

As to the legislative intent, Judge Overstreet emphasized that the Illinois General Assembly intended for BIPA “to be a remedial statute that implemented prophylactic measures . . . .” However, “under the majority’s view, the legislature intended for Illinois businesses to be subject to cataclysmic, job-killing damages, potentially up to billions of dollars, for violations of the Act.” The dissent found no statutory support for such an interpretation and emphasized that, under the majority’s holding, Plaintiff Cothron alone could be entitled to “damages exceeding $7 million for this single employee despite the fact that plaintiff has not alleged a data breach or any costs or other damages associated with identity theft or compromised data.”

Judge Overstreet further emphasized that, by acknowledging the “harsh” and “absurd” consequences of their interpretation but nevertheless finding the per-scan approach to be proper, the majority “authorized exorbitant damages awards threatening financial ruin for some businesses . . . .” Moreover, the dissent found the majority’s interpretation to not only pose practical concerns for businesses, but to also present constitutional due process concerns for Illinois courts. Therefore, the dissent concluded by “implor[ing]” the Court to reconsider White Castle’s petition for rehearing and assess whether the resulting interpretation of BIPA passes constitutional scrutiny.

Implications For Businesses

The Illinois Supreme Court’s Cothron decision remains a large disappointment for Illinois businesses, especially when considered in light of the Court’s Tims decision (summary can be found HERE) finding a 5-year limitations period to be appropriate for BIPA claims. Moreover, BIPA claims are no longer limited to just timekeeping technology – plaintiffs’ firms are targeting companies’ use of other biometric technology such as retinal scans, facial scans, and voiceprint-collecting headsets.

With Cothron and Tims being the law within Illinois courts, companies must quickly adjust to this new BIPA landscape. While there have been proposed legislative amendments to the Act that would limit its broad scope and damages potential, these measures have not progressed to the point of becoming law. As a result, it is now more important than ever for Illinois businesses to thoroughly assess their use of biometric technology, analyze their biometric data policies, and ensure compliance with BIPA. For more information about the Illinois Biometric Information Privacy Act and how this decision may affect your business, contact the authors—Danielle Kays and James Nasiri—your Seyfarth attorney, or Seyfarth’s Workplace Privacy & Biometrics Practice Group.

By: Andrew Scroggins and James Nasiri

Seyfarth Synopsis: Each Fiscal Year (“FY”), the Equal Employment Opportunity Commission (“EEOC”) releases data on the number of charges it receives from applicants and employees. This data is noteworthy as it reflects the experiences of the American workforce and how individuals feel they have been treated over the past year. In FY 2022, the EEOC saw the number of charges leap by more than 10,000 over the prior year. This uptick appears to be almost entirely attributable to the COVID-19 pandemic: a striking rise of over 600% in religious discrimination claims, with many filed by applicants and employees seeking religious exemptions to companies’ COVID-19 vaccine mandates.

Breakdown of FY 2022 EEOC Charge Data

In order to file a lawsuit under federal workplace anti-discrimination law, an employee must first file an administrative charge with the EEOC. Given that an EEOC charge is the first step to filing a federal discrimination case, examining the EEOC’s charge data can provide an interesting perspective on the status of the employment discrimination space. Indeed, EEOC charges are a direct reflection of employees’ views about how they are being treated in the workplace.

Since FY 2018, there has been a steady decline in the amount of total EEOC charges filed. Specifically, American workers filed 76,418 charges in FY 2018. This number dipped under 73,000 in FY 2019 and has since continued to decline, culminating in a historic low of 61,331 charges filed in FY 2021: the lowest total filing number since the EEOC started to publicly track filing data in 1992.

The EEOC’s announcement of FY 2022 data shows that trend has reversed. American workers filed a total of 73,485 charges with the Commission last year, an increase of approximately 12,000 charges as compared to FY 2021, and the highest amount of charges filed since FY 2018. The graphic below shows how FY 2022 reversed the downward trend observed since FY 2018.

In addition to publishing the amount of total charge filings per FY, the EEOC also reports on the annual number of charges alleging various types of claims. For instance, the most common category has historically been retaliation, which accounts for between 35-55% of total filings per year. (Charges can include more than one type of claim, and retaliation claims are often made in addition to claims of discrimination, harassment, or failure to accommodate.) Interestingly, most FY 2022 filing numbers per category are not significantly different from those in FY 2021. Though the number of charges alleging retaliation, sex discrimination, and disability discrimination ticked moderately higher than the prior FY, filing numbers for age, race, and national origin discrimination claims slid downward as compared to FY 2021.

Claims of religious discrimination are the driving force behind the overall increase in EEOC charge filings from FY 2021 to FY 2022. In FY 2021, American workers filed 2,111 charges alleging religious discrimination, but in FY 2022 the EEOC recorded a whopping 13,814 religion-based charges. This nearly seven-fold increase in religious discrimination charges is no coincidence – it is fueled by the flood of employees who sought religious exemptions to COVID-19 vaccine mandates implemented by many employers in FY 2022. Even the EEOC’s own charge statistics page notes that “[i]n FY 2022, there was a significant increase in vaccine-related charges filed on the basis of religion.” The graphic below highlights the amount of EEOC charges filed by type of claim between FY 2018 and FY 2022.

Significance of EEOC Charge Data for Employers

EEOC charge data provides a unique window into activity at the Commission, and it also instructs employers on how American workers as a whole claim they have been treated in the workplace. While vaccine mandates are not as common now as during the height of the pandemic, the EEOC’s FY 2022 charge data suggests that employers may be grappling with the ramifications for some time to come, as EEOC investigations continue and some charges take on a second life in courthouses around the country. Stay tuned to our blog as we continue to monitor the EEOC’s activity, the legal implications of the COVID-19 pandemic, and the overall status of the workplace discrimination space. For more information on the EEOC or how the Commission’s activity may affect your business, contact the authors – Andrew Scroggins and James Nasiri – or a member of Seyfarth Shaw’s Complex Discrimination Litigation Group.

By: Matthew J. Gagnon

Seyfarth Synopsis: On June 15, 2023, the EEOC issued a message from its Chair, Charlotte A. Burrows, for Pride Month that, among other things, highlighted the continuing impact of the Supreme Court’s seminal decision in Bostock v. Clayton County. Bostock held that discrimination on the bases of sexual preference or gender identity are prohibited by Title VII as forms of sex discrimination. This decision promises to have a significant and lasting impact on American workplaces. Chair Burrows’s message leaves little doubt that the EEOC intends to play a significant role in shaping that impact.

On Thursday, June 15, 2023, the EEOC put out a message from its Chair, Charlotte A. Burrows, for Pride Month. The message hailed the importance of the Supreme Court’s recent landmark decision in Bostock v. Clayton County, which held that discrimination on the bases of gender identity or sexual orientation are forms of gender discrimination. The EEOC also highlighted its own role in bringing about that result, linking to a graphic that shows, among other things, the history of its fight for LGBTQ+ rights in the courts. But perhaps the most interesting aspect of the announcement is what it portends about the impact of Bostock into the future.

Bostock is certain to cast a long shadow on the American workplace. Although the basic fact of Title VII’s prohibition of discrimination on the basis of sexual preference and gender identity has been settled, many other questions are left open and unresolved. In a slightly different context, a federal court in Texas described the issue this way: “is the non-discrimination holding in Bostock cabined to ‘homosexuality and transgender status’ or does it extend to correlated conduct—specifically, the sex-specific: (1) dress; (2) bathroom; (3) pronoun; and (4) healthcare practices typical of the LGBTQ community”? Texas v. EEOC, No. 2:21-cv-194-Z, 2022 WL 4835346, at *2 (N.D. Tex. Oct. 1, 2022). That court held that Bostock had not reached those issues.

EEOC Chair Burrows’s Pride Month message leaves little doubt that the EEOC wants—and will have—a seat at the table in determining the outcome of those issues as well. The message notes that the EEOC recently filed four lawsuits “seeking relief for individuals who were discriminated against because of their sexual orientation or gender identity.” One of those lawsuits, for example, seeks relief on behalf of a transgender man who allegedly suffered severe harassment, including “repeated and intentional use of female pronouns when addressing him.” In fact, each of the four lawsuits highlighted by Burrows are premised on a theory of harassment. In many ways, that theory of discrimination cuts straight to the heart of the matter: In the post-Bostock world, what types of speech and conduct are now out of bounds in the American workplace? These and other similar issues are set to be resolved in the coming years through the long process of litigation as these types of cases wind their way through the courts.

In the meantime, the EEOC has other means at its disposal to shape these issues. Burrows’s message also notes that, in addition to using its enforcement authority, the EEOC also “remain[s] committed to robust education and outreach about the Bostock decision.” The message mentions that the EEOC hosted nearly 350 outreach events during the last fiscal year to “educate workers and employers about Bostock and promising practices to promote safe, inclusive, and respectful work environments.” Those educational events do not carry the force of law, but they may point in the direction the EEOC wants these issues to go, and where it will strive to take the country using the power of its enforcement authority.

Implications For Employers The full scope of the impact of Bostock is just beginning to be felt. Many of the issues raised by that decision will be decided by the courts only after years of protracted litigation, meaning it will take time for the full scope of their impact to reveal itself. To make matters worse, the federal judiciary is likely as divided on these issues as the American workforce is. This is amply demonstrated by the decision in Texas v. EEOC. The judge who decided that case is a recent Trump appointee, who has already garnered quite a reputation for issuing conservative and occasionally controversial rulings. One can already see the seeds of circuit splits being planted. Employers will have no choice but to monitor these trends closely and be prepared to adapt quickly. As the prevailing view unfolds over time, employers will likely be called upon often to change their policies and practices in response to frequent changes in the law.

By: Michael D. Jacobsen

Seyfarth Synopsis:  On June 25, 2021, the U.S. Supreme Court issued its pivotal ruling in TransUnion LLC v. Ramirez (“TransUnion”).  As reported here (https://www.workplaceclassaction.com/2021/06/u-s-supreme-court-holds-that-class-members-who-suffer-no-concrete-harm-from-statutory-violations-do-not-have-article-iii-standing-and-cannot-recover/), in TransUnion, the Supreme Court reinforced prior precedent that Article III standing requires a “concrete harm” and that plaintiffs must demonstrate standing with respect to each claim asserted.  “No concrete harm, no standing” famously sums up the Supreme Court’s ruling.  As expected, the impact of TransUnion has been significant, and it is important for companies to be aware of the reverberating implications of this ruling for purposes of defending complex litigation. 

Accordingly, to mark the upcoming two-year anniversary of TransUnion, the Workplace Class Action blog will be providing an assessment of the most recent and relevant applications of TransUnion by the federal Circuit Courts.  For starters, however, here is a look at a pair of recent district court rulings applying TransUnion in putative class actions arising from alleged employee data breaches at the motion to dismiss stage:  Hall v. Centerspace, LP and McCombs v. Delta Group Electronics, Inc.  Both cases exemplify the importance for companies facing class-action litigation to assess the plaintiffs’ standing as to each claim to help secure victories early on in the litigation.

Hall v. Centerspace, LP

Case Background

In Hall, the plaintiff worked for a subsidiary of Centerspace, which owns and operates apartment complexes in several states.  Hall and other employees were required to give Centerspace their personally-identifying information (“PII”) as a condition of employment, including names, bank account information, and Social Security numbers.  Following a data breach of computer files potentially containing PII, Hall brought a putative class action in the U.S. District Court for the District of Minnesota, seeking to represent a class of all individuals in the United States whose PII was compromised in the breach.  In addition to damages, Hall sought a declaration that Centerspace was in breach of its duty to employ reasonable data security to secure the PII with which it was entrusted, as well as injunctive relief requiring Centerspace to employ “adequate security protocols consistent with industry standards” to protect the plaintiff’s and putative class members’ data.  Centerspace filed a motion to dismiss, challenging Hall’s standing to pursue future injunctive relief under Article III.    

The Court’s Decision

The court ruled in favor of Centerspace.  The court noted that courts in data-breach cases consider whether plaintiffs have standing to seek injunctive and declaratory relief in light of TransUnion’s holding that a plaintiff must demonstrate standing separately for each form of relief sought.  The court also noted another decision in Minnesota federal court that applied TransUnion to find that the plaintiffs lacked standing to pursue relief similar to that which Hall requested because they failed to allege a sufficiently imminent and substantial risk of harm that would be avoided if the relief was granted.  Turning to the case at bar, the court found that Hall did not show that he faced such a risk of future harm that a declaration and injunction would address.  The court clarified that it was not suggesting that “forward-looking” injunctive relief is never appropriate in a data-breach case.  However, there were no facts in the complaint indicating that a second data breach was certainly impending, or even that there was a substantial risk that one would occur.  The court noted that there was no suggestion, for example, that Centerspace currently was being targeted by hackers, or that something about its operations made it uniquely vulnerable to incursions.  The court concluded that nothing in Hall’s pleading transformed the possibility that Centerspace might suffer another data breach into an imminent or substantial risk.  Accordingly, the court ruled that Hall’s forward-looking claims for a declaratory judgment and injunctive relief must be dismissed for want of standing. 

McCombs v. Delta Group Electronics, Inc.

The Hall ruling was issued on Friday, May 12, 2023.  Almost a month later, on Friday, June 9, 2023, the U.S. District Court for the District of New Mexico also weighed in on standing in the data-breach context in McCombs.

Case Background

In McCombs, the plaintiff brought a putative class action against her former employer.  Like Hall, McCombs had provided Delta with PII and financial information.  McCombs alleged that her and other employees’ names, Social Security numbers, driver’s license numbers, and financial account numbers were accessed when an “unknown cybercriminal” hacked Delta’s computer systems in 2022.  According to McCombs, the data compromise will be an “omnipresent threat” for her and the proposed class “for the rest of their lives.”  While McCombs conceded that the alleged fraudulent activity “may not come to light for years,” she maintained that she was subject to a general threat of future harm, such as “targeted marketing” or having her PII end up for sale on the “dark web.”  While admittedly “left to speculate” about the possible future impacts of the breach, McCombs nonetheless sought monetary damages and injunctive relief on behalf of herself and the proposed class.  Delta moved to dismiss on multiple grounds, including for lack of standing. 

The Court’s Decision

The court ruled in Delta’s favor, finding that McCombs had not sufficiently alleged injuries that were fairly traceable to the breach and, thus, lacked standing to pursue her claims.  The court addressed multiple aspects of McCombs’ allegations and provided a breakdown of the different ways in which the federal Circuit Courts have addressed standing in data breach litigation over the past decade.  The court honed in on TransUnion, however, when considering McCombs’ allegations of unrealized, potential risks of harm associated with identity theft.  As the court recounted, the argument that won the day in TransUnion was that the mere risk of future harm, standing alone, cannot qualify as a concrete harm, unless the exposure to the risk of future harm itself causes a separate concrete harm.  The court recognized that following TransUnion, the mere possibility of a potential unrealized injury, without more, does not confer standing. 

Against this backdrop, the court found McCombs’ allegation that her PII potentially would be used by an unknown cybercriminal to commit fraud or identity theft fell “well short” of what is required for standing, as McCombs had not demonstrated that the risk of future harm had manifested by way of an injury from the theft of her PII.  For instance, the court pointed out that McCombs failed to allege that any compromised PII—whether hers or that of the proposed class—had been misused yet, even though more than a year had passed since the data breach.  Since McCombs’ alleged injuries lived “almost entirely in the future” and were “premised on potential illegal activity yet to be committed (and which may never be committed) by an unknown third party,” they were too speculative to invoke the court’s jurisdiction.  Accordingly, the court granted Delta’s motion to dismiss.

Implications For Employers

Although TransUnion may not be a silver bullet for employers, these cases demonstrate its lasting significance.  Hall in particular underscores the importance of the U.S. Supreme Court’s teaching that “standing is not dispensed in gross; rather, plaintiffs must demonstrate standing for each claim that they press and for each form of relief that they seek (for example, injunctive relief and damages).”  The cases also serve as examples of courts rejecting claims based on risks of future harm, following TransUnion.  In crafting their defense strategy, employers and other corporate defendants of class actions should analyze plaintiffs’ theories of injury accordingly, including as to each claim and request for relief asserted. 

By: Christopher DeGroff, Andrew Scroggins, and Christopher Kelleher

Seyfarth Synopsis: Over the past several years, the EEOC has maintained a litigation focus on protecting young workers in low wage jobs from sexual harassment. This has translated to intense scrutiny of teenagers working in the restaurant industry. According to the EEOC, these workers are particularly vulnerable to harassment and other forms of discrimination. Employers in any industry with young employees should pay particular attention to harassment issues, as the EEOC has demonstrated it is keeping a watchful eye on this particular demographic.  Restaurant employers should be particularly on alert.

On September 12, 2022, during a Strategic Enforcement Plan session, the EEOC’s Vice Chair, Jocelyn Samuels, expressed the agency’s determination to reach young workers in the restaurant industry, including teenagers, who “aren’t aware of their rights, and are particularly subject to harassment and other forms of discrimination at work.” According to a national survey conducted by Social Science Research Solutions in January 2021, 71% of female restaurant workers have been harassed at least once during their time in the industry. And, in fact, more harassment charges are filed in the restaurant industry than in any other industry.[1]  

The EEOC’s recent litigation efforts show that the agency has put its money where its mouth is to combat harassment against young employees in the restaurant industry. Just in the last five years, the EEOC has pursued cases in virtually every restaurant concept, and has brought suit against both big and small employers, from nationally-known chains to modest mom-and-pop locations.  For instance:

  • In May 2023, the EEOC filed suit against Culver’s Restaurants in Minnesota, alleging that the restaurant subjected employees to a hostile work environment based on race, sex, sexual orientation, and disability. As part of the lawsuit, the EEOC claimed that the company exposed female employees, some as young as 14 years old, to sexual harassment, including unwanted sexual touching, jokes, and propositions. EEOC v. R & G Endeavors, Inc., Case Nos. 0:23-cv-01501-PJS-LIB and 0:23-cv-01506-ECT-JFD. 
  • In May 2023, the EEOC filed suit against Swami’s Café and Honey’s Bistro, a chain of restaurants in San Diego, California. The suit alleged that, beginning in 2019, nine restaurant locations allowed a class of young female employees, including some teenagers, to be subjected to sexual harassment by male supervisors and co-workers. The harassment allegedly included frequent and offensive sex-based remarks and advances, among other behavior, which the restaurant did not properly monitor. EEOC v. Swami’s 101 LLC, et al., Case No. 3:23-cv-00902-LAB-NLS.
  • In September 2022, the EEOC filed suit against two Chili’s Grill & Bar restaurants, one in Benton, Arkansas, and one in Dallas, Texas. The suits alleged that the restaurants subjected female employees, including teens, to a sexually hostile work environment, which included several physical assaults, vulgar comments, and sexual remarks. EEOC v. Brinker Int’l Payroll Co. LP, et al., Case Nos. 4:22-cv-00820-KGB and 3:22-cv-02017-E.
  • In March 2022, the EEOC filed suit against Chipotle Mexican Grill, alleging that the company subjected young female employees to ongoing sexual harassment. The complaint alleged that the restaurant failed to investigate and/or remediate internal complaints of harassment, and allowed an alleged male harasser to return to the workplace, where he angrily confronted those who had complained about the harassment. EEOC v. Chipotle Services, LLC and Chipotle Mexican Grill, Inc., Case No. 2:22-cv-00279.
  • In June 2021, the EEOC sued Sonic Drive-In, alleging that three teen female carhops were subjected to a hostile work environment, when a manager made daily crude sexual comments and sexual propositions to them, and subjected them to unwelcome physical touching. The lawsuit alleged that even after the harassment was reported to management, no responsive or remedial actions were taken. EEOC v. SDI of Minola, Texas, LLC, et al., Case No. 6:21-cv-00226-JCB-KNM.
  • In February 2020, the EEOC sued a Medford, Oregon restaurant, New China, alleging that the restaurant allowed its former manager to repeatedly sexually harass young female employees. The complaint further alleged that the restaurant terminated one worker after she reported the conduct, and created intolerable workplace conditions, forcing other workers to quit involuntarily. According to the lawsuit, even after the manager was arrested at work and booked for sexual abuse of the restaurant’s minor employee, he was permitted to return to work. EEOC v. New China, Inc., Case No. 1:20-cv-00277-CL.
  • In October 2019, the EEOC filed suit against Pei Wei Asian Diner, LLC, in Little Rock, Arkansas, alleging that the restaurant subjected a class of female teens and young adults to sexual harassment and a sexually hostile work environment. According to the EEOC, despite receiving notice that the general manager had allegedly harassed young female employees since 2016, the company allowed the manager’s behavior to continue unchecked. EEOC v. Pei Wei Asian Diner LLC, Case No. 4:19-cv-00718-KGB.
  • In March 2018, the EEOC filed suit against an owner and operator of 51 Arby’s locations across Alabama, Georgia, Louisiana, Mississippi, and Florida. The lawsuit alleged that the company permitted a sexually hostile work environment based on ongoing sexually explicit comments and other alleged harassment by an older male team leader against three teenage female crew members. EEOC v. Beavers’ Inc., d/b/a Arby’s, Case No. 1:18-cv-00150-TFM-MU.   

The list goes on, but the message is clear: if the EEOC learns of harassment of young employees at any hospitality employer, it will aggressively investigate and – when appropriate – litigate, claims of workplace harassment. 

Implications for Employers

For restaurant employers who want to stay out of the EEOC’s crosshairs, and maintain a healthy and functioning workforce, the best defense is a good offense. Proactive measures can not only assist with legal claims – they can often prevent claims from happening in the first place. It is important to establish and enforce a strong, state-of-the-art anti-harassment policy. Not all policies are created equal, and a review of work rules through the lens of recent legal changes and challenges is strongly advisable. Another best practice is to conduct regular workplace trainings to educate employees, including managers, on harassment prevention and what is off-limits. In addition, employers should take seriously, and promptly investigate, any internal complaints of harassment, and take swift and effective remedial measures when appropriate, to avoid repeated instances of harassment. Each of these steps were recently championed by the EEOC as effective ways to avoid harassment claims (read more here).

Another best practice involves keeping an eye on what administrative charges can tell an employer. Hospitality employers often have decentralized human resources and operations functions. EEOC charges can be received and processed by locations in the field without that information being escalated and evaluated at a bird’s-eye view. Keeping track of charge trends and identifying potential vulnerabilities could allow an employer an opportunity to nip potential problem areas in the bud. These concerns, while serious, are not insurmountable. Knowing the issues and taking preventative steps can keep employers one step in front of a potentially perilous tangle with the EEOC.

[1] See, e.g., Harvard Business Review, Sexual Harassment Is Pervasive in the Restaurant Industry. Here’s What Needs to Change, January 18, 2019, available at https://hbr.org/2018/01/sexual-harassment-is-pervasive-in-the-restaurant-industry-heres-what-needs-to-change

By: Annette Tyman and Andrew Scroggins

EEOC equal employment opportunity commission report and gavel.

Seyfarth Synopsis: On May 18, 2023, the Equal Employment Opportunity Commission (EEOC) released Technical Assistance on the use of advanced technologies in the workplace titled Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964 (“TA”). The EEOC did not unveil new policies in the TA but reiterated that its long existing policies and practices continue to apply to the technologies (such as artificial intelligence and machine learning tools) that are grabbing the public’s attention today.  The TA broadly defines the types of automated systems that may be subject to employment laws and poses seven questions and answers designed to help employers avoid discriminatory employment decisions regardless of whether those decisions are made by humans or machines. The publication is an important read for employers.

EEOC Emphasizes That Long-Standing Title VII Principles Apply Even To New Technologies

In its new publication, the EEOC acknowledges that it is not announcing new policies. Rather, the publication “applies principles already established in the Title VII statutory provisions as well as previously issued guidance” to advanced technologies used in the workplace.

In line with that approach, the EEOC makes clear that it takes a broad view of the types of technology it has the authority to cover. Specifically any software, algorithm, AI, or other automated tool that is used to make “selection decisions” such as hiring, promotion and terminations, must be used in a manner consistent with EEO statutes. Expanding existing legal theories to emerging issues like AI and other technology tools fits squarely within the EEOC’s strategic enforcement priorities. A detailed examination of the EEOC’s strategic goals can be found here.

Focus On Disparate Impact Discrimination

The publication focuses on theories of “disparate impact” discrimination under Title VII of the Civil Rights Act of 1964. Disparate impact (sometimes called “adverse impact”) refers to the use of a facially neutral test or selection procedure that has the effect of disproportionately excluding members of a protected group, if the tests or selection procedures are not “job related for the position in question and consistent with business necessity.” Disparate impact theories are powerful tools for the EEOC, as they necessarily implicate broad swaths of potential “victims” in a single enforcement action, maximizing EEOC’s “bang for the buck.”

EEOC Expects Employers To Assess Algorithmic Decision-Making Tools For Adverse Impact In Accordance With The Uniform Guidelines on Employee Selection Procedures

Since 1978, the EEOC has directed employers to follow its Uniform Guidelines on Employee Section Procedures (Guidelines) to determine whether tests and selection procedures are lawful under Title VII. In its TA, the EEOC reiterated that the Guidelines continue to apply to new technologies “when they are used to make or inform decisions about whether to hire, promote, terminate, or take similar actions toward applicants or current employees.”

As a result, the EEOC’s expectation is that employers will assess whether a selection procedure has an adverse impact on a particular protected group. The assessment requires a comparison between the selection rates for individuals in a protected group to those not in the protected group. Significant differences between the two groups must be remedied, unless the employer can show that the selection procedure is job related and consistent with business necessity.

Employers Can Be Responsible For Tools Designed And Administered By Others, Including Vendors

In the TA, the EEOC made it clear that employers may be held liable for the tools created by third parties, including software vendors, and cannot simply wash their hands of responsibility for the outcomes that flow from using tools developed by others.

The EEOC suggests that employers must, at a minimum, ask vendors whether steps have been taken to evaluate whether use of the tool causes a substantially lower selection rate for those in protected groups. However, the EEOC also makes clear that an employer cannot rely on the representations of its vendors. If the vendor says its assessment does not result in different selection rates, but disparate impact nonetheless results, the employer may still be on the hook for any adverse results. As a best practice, employers should vet any tools provided by third parties before putting the tools into use, and also implement audit procedures designed to monitor the results of using those tools to guard against any adverse impact.

With regard to third-party developers of tools, EEOC Commissioners have separately suggested that vendors themselves could be targeted by the Commission if their input into employment decisions are enough to bring them into the orbit of EEO laws. While not specifically addressed in the TA, this is an important issue that we will continue to track.

The Four-Fifths (80%) Rule Alone Does Not Provide A Safe Harbor For Measuring Allowable Differences In Selection Rates

One clarification likely to grab the attention of employers (and vendors) is the EEOC’s position that the well-known “four-fifths rule” may not be used as a sole measure to assess bias in a selection tool.  As described in the Guidelines, the four-fifths rule is one measure used to assess whether selection rates of two groups are “substantially” different. More specifically, if one group’s selection rate is less than 80% of that of the comparison group, the rates are considered substantially different.

In the TA, the EEOC emphasized that the four-fifths rule is only a “general rule of thumb” that is “practical and easy-to-administer,” and courts have found that it is not a reasonable substitute for statistical tests. Curiously, the EEOC has historically championed the use of the four-fifths rule to assess significance in other contexts. (See prior EEOC Guidance here for an example.)

The EEOC’s position is important as many vendors and employers have used the four-fifths rule articulated in the EEOC’s 1978 Guidance as a threshold analysis in bias audits.  The general thinking was that since the four-fifths rule was a well-established benchmark articulated by EEOC and long applied to other testing and assessment tools, it was a good threshold indicator of potential bias in the absence of other guidance. Indeed, the FAQs in the Guidelines provide that to assess adverse impact, “federal enforcement agencies normally will use only the 80% (4/5ths) rule of thumb, except where large numbers of selections are made.” (See FAQ Guidelines Q18).

In keeping with the clarifying comments in the EEOC’s TA, as well as issues related to the appropriate audit method depending on the sizes of the pools being analyzed, employers and vendors that are studying the effects of selection tools (or asking vendors about the tools they provide) may need to reassess their audit strategies. This may include implementing audit standards that evaluate both statistical significance and practical significance, using the four fifths test or other “practical significance” methodologies.

Employers Should Act Upon Discovering That An Algorithmic Decision-Making Tool Results In A Disparate Impact

The EEOC encourages employers to conduct self-analyses before implementing any new tool, and periodically thereafter to ensure that the tool is operating free of bias. If an employer discovers that a tool would have an adverse impact, the EEOC’s expectation is that the employer will either take steps to remedy the impact or select a different tool to use going forward.

EEOC’s Initiatives And Guidance Related To Automated Systems and AI

The TA is part of the EEOC’s Artificial Intelligence and Algorithmic Fairness Initiative, first announced in October 2021, which was designed to ensure that AI and other emerging tools used in hiring and employment decisions comply with the federal civil rights laws that the agency enforces. Since that time, the EEOC has continued to beat its drum on the topic:

  • The EEOC has published guidance that discusses how existing requirements under the Americans with Disabilities Act (ADA) may apply to the use of AI, software applications, and algorithms in employment-related decision-making processes and practices and offered useful information and tips to employers in an effort to assist them with ADA compliance when using such tools.
  • The EEOC published a proposed Strategic Enforcement Plan (SEP) that announced its intention to focus on recruitment and hiring practices and policies that might give rise to discrimination against members of protected groups, including where employers use AI to aid decision-making.
  • The EEOC has held roundtable events and hearings to gather information and discuss the civil rights implications of the use of automated technology systems, including artificial intelligence, when hiring workers.
  • The EEOC has joined other federal agencies to release a joint statement to emphasize that the use of advanced technologies, including artificial intelligence, must be consistent with federal laws.

Employers should expect the EEOC to continue to focus on this topic.

Implications For Employers

The EEOC’s Technical Assistance document does not impose any new rules on employers. Rather, it is yet another reminder to employers that existing law applies to new and advanced technologies, and employers are responsible for employment decisions that impact applicants and employees, whether made by people or with the assistance of machines.  Employers should dust off the 1978 Guidelines and supporting materials and take a fresh look at them as they consider the various technologies that may be used to support employment decisions. 

The publication also represents more foreshadowing of the EEOC’s enforcement priorities, showing once again that the EEOC will scrutinize the technological tools that employers increasingly rely on to make hiring and employment decisions. Employers are well-served to track EEOC charges filed against them that include allegations concerning technological developments as well as those which may prompt the EEOC to issue requests for information seeking information about these tools.

By: Christopher Kelleher, Adam Rongo, and Christopher DeGroff

Seyfarth Synopsis: The EEOC has released technical assistance on preventing workplace harassment in the federal sector. While the guidance does not specifically apply to private employers, it provides important lessons for employers when dealing with workplace harassment and avoiding liability in employment litigation, and insight into how the EEOC views these concepts.

On April 20, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a technical assistance document, Promising Practices for Preventing Harassment in the Federal Sector, which provides practical tips for preventing and addressing workplace harassment. While the guidance is geared toward federal government employers, it provides helpful recommendations applicable to the private sector as well, and also provides an important perspective on how EEOC enforcement efforts may be evolving. Some of the highlights are discussed below.

Leadership and Accountability

According to the EEOC, all employers should establish and maintain an anti-harassment program, with neutral staff-members who are responsible for promptly, thoroughly, and impartially investigating allegations of harassment, and taking immediate and appropriate corrective action. Federal agencies must begin investigations within 10 calendar days of receipt of the harassment allegation. While there is no specific time period within which private sector employers must investigate internal allegations of harassment, liability can often hinge on the promptness of the investigation and remedial measures. As such, all employers should begin workplace harassment investigations as soon as practicable.  As a practice tip, however, employers may consider this 10-day interval as one at least facially supported by the EEOC,

The guidance also recommends that employers take other actions to demonstrate commitment to preventing and addressing harassment, such as conducting climate and exit surveys, reviewing harassment allegations to guide future policy changes, and ensuring that consistent penalties are implemented and enforced in the event that workplace harassment occurs.

Comprehensive and Effective Anti-Harassment Policy

The EEOC states that government employers should establish and maintain a comprehensive anti-harassment policy that is regularly disseminated to all employees. Such a policy is often an important element of an effective harassment prevention strategy, and also helps private employers limit liability. In its guidance, the EEOC requires federal agency policies to provide a clear explanation of prohibited conduct, and prohibit harassment on all protected bases, including race, color, sex (including sexual orientation, gender identity, and pregnancy), national origin, religion, disability, age (40 years or older), genetic information (including family medical history), and retaliation. Employers should note, however, that protected categories may vary by jurisdiction, and workplace harassment policies generally provide broader coverage than the law requires.

According to the EEOC, the policy should provide multiple avenues for employees to report harassment, including individuals or departments outside the employee’s reporting chain of command. The guidance provides that the policy should also include assurances that employees making complaints of harassment will be protected from retaliation, that the employer will take prompt corrective action to prevent or address harassing conduct, and keep identity of individuals involved (i.e., the complainant, witnesses, alleged victim, and alleged harasser) confidential, to the extent possible, consistent with legal obligations and the need to conduct a thorough investigation. 

The EEOC also recommends implementing additional measures, such as:

  • Providing explicit assurances that the policy applies to all employees;
  • Widely disseminating the policy, and making the policy available both onsite, and online;
  • Allowing for anonymous reporting of harassment through platforms, such as hotlines and websites;
  • Ensuring that reports of harassment and harassing conduct are well-documented;
  • Ensuring that investigations are not conducted by individuals who have a conflict of interest or bias; and
  • Providing guidance on the processes and procedures for addressing harassment allegations involving non-employees, such as contractors, guests, volunteers, or customers.

Effective Anti-Harassment Training

The EEOC stresses that to help prevent and properly address harassment, employees and management must be aware of what conduct is prohibited and how to prevent and correct it. As such, federal agencies are required to conduct periodic anti-harassment training to both supervisory and non-supervisory employees at all levels. The EEOC does not identify what it considers “compliance.”

Private employers should try to establish such training where possible as it can prevent harassment, boost employee morale and a sense of workplace safety, and help employers limit liability. The EEOC recommends that the training be tailored to the specific workplace, and regularly updated to ensure compliance. When considering such a policy, it is important to note that some states, such as California, Illinois, and New York require anti-harassment training, and some cities, such as Chicago and New York City, have additional requirements. Many other states and municipalities are considering implementing workplace harassment measures.

Implications for Employers

Though the EEOC’s technical assistance is geared towards federal agencies, the document provides useful insights for private employers attempting to determine what the EEOC considers to be an adequate anti-harassment program. This includes establishing and widely disseminating anti-harassment policies, promptly investigating internal complaints, taking prompt and effective remedial measures where appropriate, and conducting regular anti-harassment trainings. In establishing an anti-harassment program, employers should look beyond the technical assistance document and also take into account any relevant state and local laws. If you have questions about your anti-harassment practices, or any threatened or pending harassment litigation, contact your Seyfarth attorney or the authors of this post.