EEOC Explores Harassment, Pay Discrimination, and AI

The U.S. Equal Employment Opportunity Commission (EEOC) released its proposed Strategic Enforcement Plan for fiscal years 2023 – 2027 and is working to finalize that plan based on comments it has received from employers. Among the EEOC’s priorities in 2023 are sexual harassment, pay discrimination, and artificial intelligence.

Sexual Harassment

The EEOC plans to issue updated guidance for employers concerning the prevention of sexual harassment in the workplace. In the interim, EEOC points to its 2017 best practices for employers on preventing sexual harassment as instructive. The agency’s main goal is to increase what it perceives as the vast underreporting of sexual harassment. The EEOC also wants to focus on workplaces that historically have had higher than average levels of workplace harassment, which often involve vulnerable workers, such as teenagers. These workplaces include retail stores, restaurants, and fast-food places. The EEOC advises employers in these sectors to examine their workplaces and address any potentially illegal harassment.

Pay Discrimination

Although pay discrimination has long been illegal, the U.S. Government Accountability Office reports that women earned $.82 for every dollar men earned in 2021. While the EEOC recognizes that not every pay disparity results from illegal discrimination, the agency intends to identify and address the discriminatory factors that can lead to pay disparities.

The EEOC collected pay data from employers beginning in 2016, which was useful for identifying pay disparities based on discrimination. The agency stopped this practice in 2019 amidst employer complaints that collecting and submitting the data was too burdensome. The EEOC states it would never hold an employer liable for illegal discrimination solely based on pay data. Instead, the EEOC will focus on identifying patterns of systemic discrimination and target relevant geographic areas and industries. It is unclear at this point whether the EEOC intends to resume the collection of pay data from employers, although the agency acknowledged its usefulness in identifying pay discrimination.

Artificial Intelligence

The EEOC’s strategic plan also focuses on artificial intelligence (AI), which employers increasingly use to screen job candidates. The EEOC, the Federal Trade Commission, and the Justice Department want to ensure that AI tools do not discriminate against protected groups when used by employers.

For example, the EEOC would consider an AI tool discriminatory if it had a disparate impact on a protected group. A disparate impact would occur if the tool gave a protected group a selection rate less than four-fifths or 80% of the rate for the group with the highest selection rate. Even if the AI tool does not technically meet the criteria for a disparate impact, it could still be discriminatory, as when the data the employer used to train the tool was biased.

As a result, employers should advise job applicants that they intend to use AI tools during the hiring process. This disclosure allows applicants to request a disability accommodation if needed. Depending on how the tool works, applicants can find it hard to know if they need an accommodation. Some states mandate disclosure or even require the applicants’ consent if employers wish to use AI in hiring.

Employers should be mindful of other factors in using AI, such as recordkeeping and vendor relationships. For example, employers should be intentional about the records they keep during the hiring process and maintain good relationships with vendors so that they can adjust their AI tools and recordkeeping methods as state and federal laws change.

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