Employers should pay attention to the EEOC’s priorities outlined in its Draft Strategic Enforcement Plan for 2023 to 2027. Although the Enforcement Plan is not yet final, it is currently open for comments until February 9, 2023.
EEOC’s Strategic Enforcement Plan Priorities
In the Enforcement Plan, the EEOC explained its intent to use its enforcement authority on actions that have the “greatest strategic impact.” These are the actions that have a “significant effect on the development of law or on promoting compliance across a large organization, geographic region, or industry.” Examples include systemic investigations and lawsuits involving “pattern or practice, policy and/or class cases where the discrimination has broad impact on an industry, profession, company, or geographic location.”
The EEOC identified six specific areas it will prioritize for enforcement:
- Recruitment and hiring practices and policies, including employers’ use of artificial intelligence (AI), screening tools, temp-to-hire positions, internships, on-the-job training, or other advancement opportunities which may deliberately or inadvertently impact candidates in protected groups.
- Discriminatory treatment of vulnerable workers and people from underserved communities, such as job segregation, disparate working conditions, labor trafficking, and policies and practices that impact people in recognized protected classes, i.e. those with arrest or conviction records, people with intellectual or developmental disabilities, immigrant and migrant workers, and people with limited literacy or English proficiency.
- Emerging and developing issues, including those that involve new or developing legal concepts or topics, such as the newly enacted Pregnant Workers Fairness Act, COVID-19 discrimination, and the use of AI and similar tools used in making employment decisions.
- Pay discrimination, including the use of directed investigations and Commissioner Charges to facilitate enforcement of equal pay laws.
- Preserving access to the legal system, including focus on waivers, releases, non-disclosure agreements, non-disparagement agreements, and mandatory arbitration provisions.
- Preventing and remedying systemic harassment by giving priority to individual and small group claims related to a widespread pattern or practice of harassment and relying on EEOC authority to seek monetary and targeted equitable relief.
Renewed Emphasis on Artificial Intelligence (AI)
Notably, the draft Enforcement Plan spotlighted emerging issues involving AI, machine learning, and algorithmic decision-making as potential sources of bias in recruitment and hiring. The EEOC is concerned that the use of AI may exclude or disproportionately impact protected groups. It recently announced a public hearing on the topic of Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier.
The EEOC’s concerns surrounding AI are not new. In 2021, the Commission launched its “Artificial Intelligence and Algorithmic Fairness Initiative.” In May 2022, the Department of Justice and the EEOC issued a Warning Against Disability Discrimination to employers who use AI tools, and the EEOC published its first-ever technical guidance on the use of AI and its impact on people with disabilities. That same month, the EEOC filed suit against a tutoring provider who used hiring software that allegedly was programmed to automatically reject older applicants, in violation of the Age Discrimination in Employment Act (ADEA).
By publishing the draft Enforcement Plan, the EEOC is giving employers a clear signal about its enforcement priorities. Employers do not need to wait for the final Enforcement Plan to prepare to address these priorities by:
- Consulting with legal counsel before responding to EEOC charges or requests for information. The EEOC has clearly signaled its intent to use its enforcement authority to bring systemic investigations and class-like actions.
- Taking a hard look at existing and proposed use of AI and other automated tools for making decisions in the hiring and recruitment processes and engage with your software vendors to design “bias-free” algorithmic decision-making tools to reduce the risk that the software has a disparate or adverse impact on a particular protected group.
Buchanan’s labor and employment team constantly monitors and reports on changes in the legal landscape that impacts employers. With more than 60 practice-specific attorneys, Buchanan is ready to help you evaluate this emerging issue and implement any necessary updates to your hiring and recruitment practices.