Seyfarth Synopsis: On Tuesday, January 10, the EEOC released for public comment its draft 2023-2027 Strategic Enforcement Plan, or “SEP” (available here)—a document that will guide the Commission’s enforcement priorities for the next five years. The EEOC’s previously announced Strategic Plan described “how” it would pursue its enforcement goals. (See our prior blog on the Strategic Plan here.) The Strategic Enforcement Plan, on the other hand, describes “what” the EEOC’s enforcement priorities will be, making it a must-read for employers and their attorneys who want to be prepared if their industry or employment practices have them poised for increased government scrutiny.
History of the SEP
The EEOC’s first SEP, which was in effect for its Fiscal Years 2013-2016, identified six broad subject matter priorities:
- Eliminating Barriers in Recruitment and Hiring.
- Protecting Immigrant, Migrant and Other Vulnerable Workers.
- Addressing Emerging and Developing Issues.
- Enforcing Equal Pay Laws.
- Preserving Access to the Legal System.
- Preventing Harassment Through Systemic Enforcement and Targeted Outreach.
The EEOC’s second SEP, which covered Fiscal Years 2017-2022, kept the same six broad priorities but announced additional “areas of focus” within those areas. Consistent with the EEOC’s announcement, employers saw increased enforcement activities in these areas, which included a focus on protecting the rights of the LGBT community; addressing issues related to pregnancy; scrutinizing “complex” employment relationships, such as contingent work arrangements and gig economy roles; and “backlash discrimination,” particularly as it relates to those who are Muslim or Sikh.
The EEOC’s proposed third SEP continues with the same six priorities but with notable additional details that put the employer community on notice of the Commission’s intentions. In particular, the proposal includes robust interest in how employers use technology to recruit, hire, and manage workers; highlights protections for pregnancy-related issues, LGBTQI+ individuals, and those unaware of or unable to exercise their rights; and calls out the construction and technology industries for closer scrutiny.
Subject Matter Priority 1: Eliminating Barriers in Recruitment and Hiring
Prior versions of the SEP announced the EEOC’s focus on recruitment and hiring practices and policies that might give rise to discrimination against members of racial, ethnic, and religious groups, as well as women, older workers, and those with disabilities. The proposed SEP continues to include those groups while adding specific call outs for pregnant workers and those with pregnancy-related medical conditions, and LGBTQI+ individuals.
The EEOC also added far more detail about the types of hiring practices and policies that it intends to scrutinize. For example, prior SEPs described the EEOC’s intention to prevent steering members of protected groups into specific jobs. The proposed SEP goes further to explain that the EEOC also will be examining whether employers are segregating workers in jobs, or by job duties, based on membership in a protected group.
Building further on this, the proposed SEP includes several new but related areas of focus. These include looking at practices that may limit access to work opportunities, such as advertising jobs in a manner that excludes or discourages some protected groups from applying, or denying training, internships, or apprenticeships. The EEOC also intends to scrutinize whether businesses are denying opportunities to move from temporary to permanent roles, including when permanent positions are available.
Likewise, the EEOC modified its earlier focus on screening tools that might disproportionately impact workers based on their protected status, noting explicitly that it is interested in employers’ use of artificial intelligence and automated systems in that regard.
This aligns with the EEOC’s increased interest in how employers use technology to recruit and hire workers. Here, the Commission has emphasized its intent to investigate whether protected groups might be harmed—whether intentionally or not—by automated systems used to target job advertisements to particular populations, recruit workers, or aid in hiring decisions. The proliferation in recent years of electronic tools available to assist employers to find talent in challenging labor markets may provide fertile ground for the EEOC on this issue.
The EEOC also in this section called out a “lack of diversity” in certain industries, naming construction and high tech in particular, and stated its intent to monitor those benefitting from substantial federal investment.
Subject Matter Priority 2: Protecting Vulnerable Workers and Persons from Underserved Communities from Employment Discrimination
For purposes of the SEP, “vulnerable workers” are those who may be unaware of their rights under equal employment opportunity laws, or reluctant or unable to exercise those rights. The EEOC’s proposal adds substantially to this priority as well. In a change from prior versions of the SEP, the EEOC has called out nine different categories of vulnerable workers that it aims to safeguard:
- 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, particularly teen-aged workers employed in such jobs;
- Native Americans/Alaska Natives; and
- persons with limited literacy or English proficiency.
Employers in sectors that engage many members of these communities, or who have operations in areas of the country with large populations of such workers, may face increased inquiry.
Subject Matter Priority 3: Addressing Selected Emerging and Developing Issues
Priority 3 has long been a catch-all for the EEOC to address topical issues or push for expansions of the laws that it enforces.
One priority remains largely unchanged from the prior SEP: qualification standards and inflexible policies or practices that discriminate against individuals with disabilities will remain an area of focus.
The EEOC has dropped two priorities that appeared in this section of the prior SEP. These include protecting LGBT people from discrimination, and clarifying the application of workplace civil rights protections in complex employment relationships and structures. However, those priorities have not fallen completely by the wayside and do appear in other areas of the proposed SEP. This is likely just an acknowledgement that these issues are no longer “emerging” areas, but rather have been fully embraced in the EEO universe.
The proposed SEP elaborates on statements from the earlier document related to pregnancy discrimination to include protection for those affected by pregnancy, childbirth, and related medical conditions and disabilities, as well as requests for reasonable accommodations related to same.
Prior versions of the SEP have discussed “backlash” discrimination, but the new proposed SEP goes further. The EEOC has noted that discrimination against some groups can arise as a backlash in response to local, national, or global events. The EEOC identifies some groups facing such discrimination now, including African Americans; individuals of Arab, Middle Eastern, or Asian decent; Jews; Muslims; and Sikhs, but also notes that the groups at issue, and the practices they are subjected to, can be expected to change over time and in response to current events.
The proposed SEP also calls out discrimination and stereotyping related to COVID-19, noting in particular that persons of Asian descent, older workers, and persons with disabilities have been targeted. This enforcement priority also extends to requests for accommodation by those with disabilities or sincerely held religious beliefs; unlawful medical inquiries and direct threat determinations; and mistreatment based on actual or perceived disabilities, including those associated with long COVID.
The final topic under this priority is “technology-related employment discrimination.” Here, the EEOC is interested in particular in employment decisions based on algorithmic decision-making; as well as automated recruitment, selection, production, and performance management tools. (The EEOC’s recent interest in this area has been the subject of several prior blog posts, including here and here.)
Subject Matter Priority 4: Advancing Equal Pay for All Workers
The proposed SEP revises this priority to make more clear that it intends to focus on pay discrimination based on any protected category. (This prior version was more focused on sex-based differences in pay.)
The proposal departs from prior versions in two other notable ways. First, it includes a statement that the EEOC will not depend on charges from members of the public, but will use its authority to initiate directed investigations and Commissioner’s charges in order to investigate pay differences. Second, the EEOC states its intent to challenge 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.
Subject Matter Priority 5: Preserving Access to the Legal System
The EEOC’s fifth priority aims to keep an eye on policies and practices that the Commission believes may limit or discourage individuals from exercising their rights under employment statutes, or hinder the EEOC’s ability to conduct investigations. The proposed SEP is largely unchanged from the prior version and focuses on overly broad agreements, including waivers, releases, non-disclosure agreements, non-disparagement agreements, and arbitration agreements; failure to maintain applicant and employee records; and practices seen as retaliatory against those who engage in protected activity.
Subject Matter Priority 6: Preventing and Remedying Systemic Harassment
Past SEPs have offered robust statements in support of the EEOC’s interest in combatting harassment, and that continues in the new proposal. Of note, the EEOC’s proposal now expressly calls out harassment based on pregnancy, gender identity, and sexual orientation. The EEOC has also articulated more detailed support for employer training, including providing education, technical assistance, and policy guidance.
Continued Focus on Systemic Investigations and Litigation
In the proposed SEP, the “Commission once again reaffirms its commitment to the agency’s systemic program.” The EEOC looks to its SEP priorities to decide what types of systemic investigations and cases to pursue. Indeed, the SEP priority areas are “given precedence over other cases to maximize the EEOC’s strategic impact.”
Implications For Employers
The SEP is still a draft, and the EEOC is accepting comments through February 9, 2023. We will report on the final version once it is available.
However, the proposed SEP is revealing of the EEOC’s intentions. Charges related to pregnancy or issues related to LGBTQI+ individuals are high on the agency’s enforcement radar. So too are employment practices that rely on automated systems, including using technology to find and screen candidates.
On an industry basis, companies in construction, technology, and staffing should be particularly alert to EEOC enforcement activities. The same is true of companies that use contingent workers, or that employ significant numbers of workers from vulnerable communities.
With the EEOC soon to be comprised of a majority of Commissioners appointed by the Biden administration, we anticipate a pronounced uptick in enforcement activity. Employers should expect that the Commission will continue to make good on its promise to litigate large-scale, high-impact, and high-profile investigations and cases that address the issues identified as its enforcement priorities and areas of focus.