Legislative lowdown: EEOC releases Strategic Enforcement Plan, partners with DOL

The Equal Employment Opportunity Commission (EEOC) recently shared its priorities for the next fiscal years, targeting businesses’ use of AI and machine learning for employment decisions, as well as protecting a wider group of vulnerable workers from discrimination.

Here’s what HR pros should know about the EEOC’s focus for the coming years, as well as about a new partnership between the agency and the Department of Labor.

EEOC finalizes Strategic Enforcement Plan. The EEOC released its Strategic Enforcement Plan (SEP) for fiscal years 2024 to 2028 on Sept. 21. The document is separate from the strategic plan released by the agency in August, which laid out general, long-term goals and objectives for the EEOC. The SEP, by contrast, “establishes specific goals related to the agency’s enforcement authority,” the EEOC said.

The EEOC laid out six priorities in its latest plan:

• Eliminating barriers in recruitment and hiring, focusing in part on employers’ use of AI and machine learning in employment decisions.
• Protecting vulnerable workers from employment discrimination, including employees with intellectual and developmental disabilities, those with arrest or conviction records, and LGBTQI+ individuals, among others.
• Addressing selected emerging and developing issues, including protections for workers affected by pregnancy and childbirth, as well as related medical conditions; employment discrimination related to long Covid-19, and technology-related employment discrimination.
• Advancing equal pay for all workers. In addition to focusing on combating pay discrimination, the EEOC said it will focus on practices that may contribute to disparities or hamper equal pay, such as reliance on salary history.
• Preserving access to the legal system. The agency indicated it will focus on employers’ use of “overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements,” as well as mandatory arbitration provisions.
• Preventing and remedying systemic harassment. Though the EEOC said it is focused on systemic harassment, a claim by an individual or small group may fall under this priority if it’s tied to “a widespread pattern or practice of harassment.”

“The importance of the new SEP is, without hyperbole, profound,” attorneys with law firm Seyfarth Shaw wrote in a blog post about the updated priorities. Claims that fall under any of the categories identified by the EEOC are likely to be more highly scrutinized by the agency’s investigators and litigators. The SEP, therefore, provides a window into how the agency will interact with, and litigate against, employers in the future, the attorneys wrote.

EEOC partners with the DOL on enforcement. The EEOC and the Department of Labor’s Wage and Hour Division (WHD) signed a memorandum of understanding in order to enhance enforcement of federal laws and regulations, the two agencies announced on Sept. 14.

Under the partnership, the two agencies will seek to work more closely on information sharing, joint investigations, sharing, and outreach. EEOC Chair Charlotte A. Burrows cited the recently enacted Pregnant Workers Fairness Act and PUMP Act as two potential areas on which to focus. The EEOC oversees enforcement of the former, while the WHD is in charge of enforcement for the latter.

The EEOC and WHD may share information “in cases of common legal interest” under the memorandum. This may include matters pertaining to employment discrimination, unlawful compensation practices, or denial of required break times for nursing mothers, for example.

In light of the partnership, HR should keep in mind their data is likely to be shared across, and subject to enforcement action from, both agencies, experts told SHRM. “Employers should expect more effective and robust enforcement,” said Liz Morris, deputy director of the Center for WorkLife Law at the University of California College of the Law, San Francisco. “The investigations are going to be more comprehensive.”