The Equal Employment Opportunity Commission (EEOC) recently released its proposed Strategic Enforcement Plan, outlining enforcement priorities for the next four years. Employers should consider the following key takeaways.
Preserving Access to the Legal System
The EEOC plans to target:
- Overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements (also a focus for the National Labor Relations Board (NLRB) – see below);
- Unenforceable, unlawful, or otherwise improper mandatory arbitration provisions;
- Employers’ failure to maintain applicant and employee data and records required by statute or EEOC regulations; and
- Retaliatory practices that could discourage employees from exercising their rights under employment discrimination laws.
The EEOC’s focus on waivers aligns with a recent important NLRB decision regarding the protection of non-union employees’ right to engage in unionizing type activities such as complaining about the terms and conditions of their employment. In February, the NLRB announced a decision that limits employers’ ability to include confidentiality and non-disparagement provisions in separation agreements.
The EEOC will begin using pay data analysis to support its ongoing focus on pay discrimination in all its forms, as well as employer practices that may impede equal pay or contribute to pay disparities. Examples of these employer practices include pay secrecy policies, retaliating against workers for asking about pay or sharing their pay with coworkers, reliance on past salary history to set pay, or requiring applicants to specify their desired or expected salary at the application stage.
The EEOC also plans to aggressively enforce the newly enacted Pregnant Workers Fairness Act (PWFA). As we noted in our January 4, 2023 employment alert, the PWFA requires employers to provide reasonable accommodations for pregnancy-related medical conditions and prohibits employers from requiring pregnant employees to take paid or unpaid leave if other reasonable accommodations can be provided. The EEOC plans to issue regulations with examples of such reasonable accommodations for pregnancy-related conditions by December 23, 2023.
Recruitment and Hiring
The EEOC will also focus on recruiting and hiring practices and policies that discriminate against racial, ethnic, and religious groups, older workers, women, pregnant worker and those with pregnancy-related medical conditions, LGBTQ+ individuals, and people with disabilities. These practices include:
- The use of artificial intelligence and automation software to assist in hiring decisions where such systems intentionally exclude or adversely impact protected groups;
- Job advertisements that exclude or discourage certain demographic groups from applying;
- The channeling, steering or segregation of individuals into specific jobs or job duties due to their membership in a protected group;
- Limiting access to on-the-job training, apprenticeship programs or internships, based on protected status;
- Limiting employees exclusively to temporary work when permanent positions are available for which they are qualified;
- Restrictive application processes or systems, including online systems that are difficult for individuals in protected groups to access; and
- Beyond the use of artificial intelligence software, screening tools or requirements that disproportionately impact workers based on their protected status, including pre-employment tests, and background checks.
Without giving in on enforcement against businesses in general, the EEOC plans to target the construction and “high tech” industries as areas with a purported lack of diversity that should receive closer scrutiny. Citing a purported lack of anti-discriminatory treatment of women and people of color in the construction industry, the EEOC plans to eliminate barriers in recruiting and hiring that might exist in these industries, place greater attention on EEOC charges in these industries, and file more cases on behalf of protected groups in these industries.
Employers should take the time now to review their policies and procedures to ensure their compliance with all applicable employment laws and to ensure that they are doing their part to promote equal opportunity and fair and inclusive workplaces for all protected groups.
If you have questions on how the EEOC’s Strategic Plan may affect your business, or seek guidance on how to ensure your company is compliant with all relevant laws and policies, contact a Gray Reed attorney.