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.

Addendum: On September 25, 2023, an EEOC spokesman confirmed that the SEP was approved in a 3-2 split vote.