The EEOC Releases Its Strategic Enforcement Plan

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Michelle A. Liebesman

September 25, 2023

On September 21, 2023, roughly a month after announcing a Strategic Plan that explains the agency’s mission and long-term goals, the U.S. Equal Employment Opportunity Commission (EEOC) released a Strategic Enforcement Plan (SEP) for Fiscal Years 2024-2028.

In contrast to the Strategic Plan, the SEP identifies six subject matter priorities that will help guide the EEOC’s work to prevent and remedy unlawful employment discrimination. To maximize the agency’s effectiveness and impact, the EEOC will take a strategic approach to enforcement and focus its attention and resources on the SEP priorities. For consistency, it will also integrate its approach to enforcement. That is, the EEOC will coordinate efforts and increase communication across its own agency offices, while continuing to collaborate with the Department of Justice, the Department of Labor, and other federal, state, and local partners that help the EEOC protect workplace civil rights.

Public and private employers with at least 15 employees are encouraged to take the time to understand the EEOC’s strategic emphasis, and then concentrate their efforts and marshal their resources to address the issues that are most important to the EEOC (because these priorities are most likely to garner EEOC enforcement measures). The complete SEP is available for review on the EEOC’s official government website, which can be accessed here.

In developing the SEP priorities, the EEOC sought input, comment, and feedback from the public and dozens of witnesses. The agency also considered progress already made toward a fair and inclusive workplace, as well as “significant challenges” that remain, citing to recent high-profile examples of systemic racism, injustice, and inequality outside the workplace. Through the agency’s implementation of the SEP, it can – and will – “do more” to promote inclusive workplaces and prevent employment discrimination.  Specifically, the EEOC identified the following six areas where it will focus its resources and prioritize enforcement:

1. Eliminating Barriers in Recruitment and Hiring. Citing the continued underrepresentation of women and workers of color in certain industries, the EEOC will focus on discriminatory hiring practices and policies that screen or exclude applicants on the basis of sex, race, national origin, color, religion, age, and disability.  The SEP provides examples of the types of activities that may intentionally exclude or disproportionately impact protected individuals, including: the use of artificial intelligence (AI) and machine learning to target, recruit, or assist in hiring decisions; job advertisements that discourage protected individuals from applying; steering certain individuals to specific jobs or duties based on protected characteristics; limiting job training or advancement opportunities based on protected characteristics; limiting employees within a protected class to temporary work when permanent positions are available; relying on an online application process that is difficult for individuals with disabilities to access; and using screening tools (like AI, pre-employment tests, background checks) that disproportionately impact workers within a protected class.

2. Protecting from Employment Discrimination Vulnerable Workers and Persons from Underserved Communities. The EEOC will focus its attention on protecting workers who are “particularly vulnerable” to discrimination. These individuals may be unaware of their equal opportunity rights, reluctant or unable to exercise their rights, or historically underserved by federal employment discrimination protections. LGBTQI+ workers, immigrant and migrant workers, older workers, Native Americans, and individuals with arrest or conviction records are among the categories of workers who are the focus of this priority.

3. Addressing Selected Emerging and Developing Issues. The EEOC will continue to prioritize emerging or developing issues. Issues may be added or removed over time, but the following issues are currently within this priority category:

• Policies or practices that discriminate against individuals with disabilities
• Protecting workers affected by pregnancy
• Addressing discrimination that arises as a backlash to local, national, or global events, like the murders of George Floyd, Breonna Taylor, and others of color
• Discrimination associated with the long-term effects of the COVID-19 pandemic, which has had a disproportionate economic impact on minorities and vulnerable workers
• The use of AI or other technology-related tools that discriminate based on a protected characteristic

4. Advancing Equal Pay for All Workers. The EEOC will continue to prioritize directed investigations and charges that combat pay discrimination, adding that it also will focus on employer practices that contribute to pay disparities. The SEP offers several examples of practices that employers should avoid, including pay secrecy policies, prohibiting workers from sharing their pay with coworkers, and setting pay based on an applicant’s salary expectations or pay history.

5. Preserving Access to the Legal System. The EEOC will focus on employer practices that either deter workers from exercising their rights under employment discrimination statutes or impede the EEOC in its investigations or enforcement efforts. The SEP provides some examples of the types of policies and practices under scrutiny, including overly broad non-disclosure agreements; improper mandatory arbitration provisions; an employer’s failure to retain certain applicant and employee data and records; and retaliatory practices that “could dissuade” workers from filing charges with the EEOC or otherwise exercising their rights under employment discrimination laws.

6. Preventing and Remedying Systemic Harassment. Noting an uptick in allegations of harassment reported between 2018-2022, the EEOC will continue to take on the “persistent problem” of systemic harassment – whether it be sexual harassment or harassment based on race, age, disability, sex, religion, color, national origin, or some combination thereof. To prevent future harassment and promote anti-harassment programs and practices, the EEOC will use all available agency tools, including strong enforcement, monetary and equitable relief, training, outreach, technical assistance, and policy guidance.

Although these broadly-framed SEP subject matter priorities are intended to encompass all field office needs and priorities, the EEOC and its division offices may supplement the priorities or pursue additional issues to address unique or local matters.  The SEP priorities will “inform charge prioritization, selection of litigation and amicus briefs, federal sector enforcement, and all other activities across the agency, including guidance, outreach, and research.”

The SEP went into effect on September 22, 2023 and will remain in effect until superseded, modified or withdrawn by the EEOC.

This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice.  Always consult an attorney with specific legal issues.