Shifts Ahead in EEOC Enforcement

Employers are likely to see shifts in U.S. Equal Employment Opportunity Commission (EEOC) enforcement as its budget increases, leadership changes hands, and enforcement priorities change. Overall, the EEOC continues to prioritize systemic cases with broad impact, such as those that affect how a law influences a particular community or industry.

Changes in Enforcement Budget Levels

The enforcement budget for the EEOC increased from $420 million in federal fiscal year (FFY) 2022 to $455 million in FFY 2023. A bigger budget is likely to lead to increased personnel and a focus on proactive charges and litigation.

Changes in Leadership

Janet Dhillon, a Republican, resigned as head of the EEOC in November 2022. In response, President Biden has nominated Democrat Kalpana Kotagal to chair the EEOC. The Senate has yet to confirm Biden’s nomination.

Changes in Enforcement Priorities

The EEOC released a Draft Strategic Enforcement Plan earlier this year that would apply to FFYs 2023 – 2027. If the EEOC approves the plan, it would modify the agency’s existing enforcement priorities.

First, the EEOC already prioritizes the protection of vulnerable workers. The strategic enforcement plan would expand the category of workers designated as vulnerable to include “additional categories of workers who may be unaware of their rights under equal employment opportunity laws, may be reluctant or unable to exercise their legally protected rights, or have historically been underserved by federal employment discrimination protections.” These individuals may include those with intellectual and developmental disabilities, individuals with criminal histories, LGBTQI+ individuals, temporary workers, older workers, low-wage workers, and limited literacy and English-proficiency workers.

Next, the EEOC recognizes the fact that employers increasingly are using artificial intelligence (AI) and machine learning in advertising for jobs, recruiting, screening, and hiring processes. As a result, employers should be sure to fully understand the factors for which this technology is screening and ensure that it is not screening for impermissible information, such as medical or disability-related information from job candidates. The utilization of this technology for performance reviews also may be an issue. Having humans periodically review these technological tools for biases is a necessity.

The EEOC also will shift to focus on any discrimination arising from the COVID-19 pandemic and other threats to public health, violations of the Pregnant Workers Fairness Act, and employment discrimination related to technology.

Finally, the EEOC will focus enforcement efforts on overly broad nondisclosure and non disparagement agreements.

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