The EEOC’s Proposed Strategic Enforcement Plan – What Employers Can Expect for the Next Four Years

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On January 10, 2023, the Equal Employment Opportunity Commission (“EEOC”) released its draft Strategic Enforcement Plan for 2023-2027, which gives employers valuable insight into the Commission’s top priorities in the coming years. While the draft plan is open for comment through February 9, (and you may submit comments here) the final plan is likely to look very similar to the current draft, which outlines four key subject matter priorities, in addition to numerous operational priorities.

In the preamble, the EEOC notes that the plan heavily considered recent current events, including “[t]he tragic killing of George Floyd, Breonna Taylor, and so many other Black and brown people … a painful reminder of systemic racism,” other high-profile incidents of violence based on race, religion, national origin, gender identity, and the disproportionate impact of the COVID-19 pandemic on people of color and vulnerable workers. The purpose of the Strategic Enforcement Plan is to help the EEOC operate as “one national law enforcement agency” with consistent priorities across regions and different units.

The four key priorities are:

  1. Eliminating Barriers in Recruitment and Hiring: This broad category encompasses barriers such as access to applications, the practice of “steering” certain groups into particular jobs, and misclassification. Importantly, the first example under this priority is the use of Artificial Intelligence in recruitment. The EEOC announced an initiative on AI and Algorithmic Fairness in October of 2021, and has since set forth special guidance in this area (which we previously discussed here). We expect the Commission to take particular interest in any Charge of Discrimination involving AI and hiring.
  2. Protecting Vulnerable Workers From Underserved Communities From Discrimination: This category will focus on a broad spectrum of vulnerable workers, including: immigrant and migrant workers; people with intellectual disabilities; workers with arrest or conviction records; older workers; LGBTQI+ individuals; teenage and other low-wage workers; persons with limited English proficiency; Native Americans and Alaska Natives; and temporary workers. This priority will seek to protect all of these workers against discrimination in all aspects of the employment relationship.
  3. Addressing Selected Emerging and Developing Issues: This priority is rather open-ended, likely to allow the Commission to pivot to address new issues. Currently, the areas of focus include qualification standards, pregnancy-related discrimination, discrimination that arises in backlash as a result of current events (the EEOC notes this currently encompasses discrimination against African Americans, individuals of Arab, Middle Eastern, or Asian descent, Jews, Muslims, and Sikhs), as well as COVID-19 related backlash. This category is likely to develop over the next few years to address new issues.
  4. Advancing Equal Pay for All Workers: This category has appeared on several versions of the plan. Equal pay charges of discrimination comprise a fraction of overall charges received because, as the Commission notes, most people do not know what their coworkers make. The EEOC will focus on pay secrecy policies and retaliation for sharing information about compensation. The EEOC will rely on directed investigations and Commissioner’s charges as needed. These tools allow the EEOC to open an investigation based on outside information but without a charging party coming forward.