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A Glimpse of What’s to Come: EEOC Enforcement Priorities for 2023-2027

February 28, 2023 Employment Law

The Equal Employment Opportunity Commission (EEOC) announced its enforcement priorities earlier this year and published its Draft Strategic Enforcement Plan. The comment period closed on February 9th, but the plan remains under review and awaits a final vote by the Commission. As employment attorneys representing both salaried and hourly wage workers, the draft plan provides an interesting look at what issues the EEOC believes are most pressing and will therefore prioritize in the coming years. 

1. Elimination of Barriers in Recruitment and Hiring

The EEOC’s top priority is to focus on discriminatory hiring and recruitment practices across all protected classes. More specifically, the EEOC intends to focus on the following specific practices: 

  • The use of automated systems, including machine learning or “AI,” that assists employers in recruitment or hiring and intentionally excludes or has an adverse impact on members of protected classes; 
  • Advertisements that exclude or discourage certain demographic groups from applying; 
  • Channeling workers into specific roles or duties due to their membership in a protected class; 
  • Limiting access to various training or advancement opportunities to exclude members of protected classes; 
  • Limiting members of protected classes to temporary work when full-time employment is available for which they are qualified;
  • Restrictive application processes or systems that are difficult for members of protected classes to access, especially those who are disabled
  • Screening tools or requirements that disproportionately impact members of protected classes, including automated or AI-backed systems, pre-employment tests, and background checks

The focus on automated and AI-enabled hiring systems is great news, as more and more employers move to websites that use controversial technology to assist them in finding candidates to fill open positions. It is also encouraging to know that these technologies may not be intentionally discriminatory but can have a disparate impact on minorities and other protected classes.  

2. Protecting Workers from Underserved Communities and The Vulnerable 

This appears to be the EEOC’s intention to interpret its anti-discrimination authority more expansively than it has been in the past. The Commission is communicating that it intends to prioritize enforcement actions in cases involving discrimination against the following groups of workers: 

  • Migrant and immigrant workers
  • Workers with arrest or conviction records
  • Workers with intellectual or developmental disabilities
  • LGBTQI+ workers
  • Temporary workers
  • Older workers
  • Low-wage workers, particularly teenagers
  • Native Americans
  • Workers with limited literacy or English proficiency

It is interesting to note that some of these classes are arguably not members of protected classes as determined by federal law. 

3. Addressing Emerging and Developing Issues

The EEOC devoted a significant amount of time and resources to research, data collection, and industry engagement. As a result, the Commission is well-positioned to identify emerging issues in employment law and address them proactively. It has identified the following emerging issues as its focus for the immediate future: 

  • Inflexible standards, policies, and procedures that have a discriminatory impact against disabled workers
  • Discrimination against workers who are affected by pregnancy or childbirth or are experiencing pregnancy-related disabilities
  • Discrimination resulting from a backlash caused by local, national, or global events
  • Discrimination arising from the COVID-19 pandemic and other threats to the public health, such as denials of reasonable accommodations or harassment
  • Technology-related discrimination

Workers can feel confident that new forms of discriminatory practices will be taken seriously by the EEOC, and should therefore seek legal counsel from a knowledgeable employment lawyer if they believe they have been discriminated against. 

4. Advancing Equal Pay 

 The EEOC will continue to take action against specific cases of discriminatory pay in all its forms. In addition, it will also increase its focus on employer practices that result in or allow for discriminatory pay such as the following:  

  • Pay secrecy policies
  • Retaliatory actions related to asking about or divulging pay rates 
  • Relying upon pay history to set pay rates
  • Requiring applicants to disclose pay expectations at the application stage

Pay discrimination remains an issue for many workers, so it is encouraging to see that this remains one of the EEOC’s top priorities. 

5. Protecting Access to the Legal System

The EEOC will take action to protect the legal rights of workers by focusing on practices or policies that limit, discourage, or prohibit workers’ access to those rights. For example: 

  • Overly broad releases, waivers, non-compete, non-disclosure, or anti-disparagement agreements
  • Unlawful or improper mandatory arbitration clauses
  • Employer’s failure to keep applicant and employee data that is required by law
  • Retaliatory practices that discourage employees from asserting their rights

In short, the EEOC recognizes that access to the legal system is vital when it comes to protecting the rights of employees. Workers who feel that they have been prohibited or discouraged from enforcing their rights should seek out an employment lawyer as soon as possible. 

6. Preventing and Addressing Systemic Harassment

According to EEOC records, more than 34% of the discrimination complaints they received included an allegation of harassment. Claims made by an individual worker or a small group of workers will be given priority if they appear to be the result of a widespread practice or pattern of harassment. 

What This Means for You

While the Strategic Plan awaits approval and adoption, it is an insightful look at where the EEOC is headed with its enforcement efforts. Employees who feel that they have experienced any adverse actions described in the plan should not hesitate to reach out to an experienced employment attorney as there may be deadlines for pursuing your claim. To protect your rights and the rights of others, you should take immediate action. 

Contact Attorneys for Employees to Discuss Your Rights

At Attorneys for Employees, we stay abreast of changes in the law so that we can better represent our clients. We have a team of talented and experienced employment attorneys dedicated to protecting the rights of workers across California. If you believe your rights have been violated, give us a call at 310-601-1330 or complete our online contact form to schedule a consultation.