Last week the EEOC issued its Strategic Enforcement Plan Fiscal Years 2024 – 2028 (FYI 2024-2028). According to the Agency, the plan “establishes the EEOC’s subject matter priorities to achieve its mission of preventing and remedying unlawful employment discrimination and to advance its vision of fair and inclusive workplaces with equal opportunity for all.” In other words, the Plan identifies “big ticket” items for potential lawsuits and other enforcement efforts that employers can expect the EEOC to pursue more aggressively in the near future.
Below are some key issues identified by the EEOC that employers should consider:
- “Preserving access to the legal system” by reviewing “overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements.” This priority emphasizes the need to ensure that severance agreements, arbitration agreements, and employer policies do not unlawfully discourage or prohibit the filing of EEOC charge and lawsuits;
- “Recognizing employers’ increasing use of technology, including artificial intelligence and machine learning, to target job advertisements, recruit applicants, and make or assist in hiring and other employment decisions.” This emphasis comes just weeks after, as our colleague Joel Hlavaty wrote, the EEOC announced a $365,000 settlement agreement with a software company that it accused of violating anti-discrimination laws through its use of AI in recruiting and hiring process. In its press release, EEOC Chair Charlotte A. Burrows wrote, “Even when technology automates the discrimination, the employer is still responsible … This case is an example of why the EEOC recently launched an Artificial Intelligence and Algorithmic Fairness Initiative. Workers facing discrimination from an employer’s use of technology can count on the EEOC to seek remedies.” This initiative and the related settlement reinforce the need to ensure that AI tools are used in compliance with applicable laws.
- “Targeting discrimination, bias, and hate directed against religious minorities (including antisemitism and Islamophobia), racial or ethnic groups, and LGBTQI+ individuals.” This priority merits special consideration in light of Groff v. DeJoy, the recent Supreme Court decision that heightened the standard for establishing the employer’s undue hardship defense in the context of religious accommodations. Under the previous standard, the employer could prevail so long as the accommodation cost was anything more than “de minimis.” Going forward, employers must now show that the burden “is substantial in the context of [its] overall business.” Thus, before rejecting religious accommodation requests, employers should carefully consider the nature of the request, the burden imposed on the business, and the viability of alternative options.
- “Protecting workers affected by pregnancy, childbirth, or related medical conditions, including under the new Pregnant Workers Fairness Act (PWFA) and other EEO laws.” This focus highlights the urgency for employers to develop a strategy to comply with the PWFA, as our colleague Megan Bennett outlined in her recent article.
What’s Ahead
While the EEOC will exercise its usual jurisdiction to process charges that allege violations of the federal discrimination statutes within its jurisdiction, the items in the Strategic Plan will receive special attention from the EEOC’s investigators and litigators. Therefore, employers should identify any potential exposure in these areas and creative a proactive strategy for minimizing liability and ensuring compliance in the future.