もしそれが集団訴訟の典型的な対象事案なら、おそらくEEOCの新年の抱負の一つだろう。
Just one month into 2024, some of us are already questioning whether we were a bit too ambitious with our New Year’s resolutions. Not the Equal Employment Opportunity Commission (EEOC), however. In the first month of the year — ambitious as ever — the EEOC already launched a new outreach initiative focused on one of its several “priorities” for 2024.
The commission isn’t likely to slow down. Employers are expected to see continued efforts to advance each EEOC priority in the coming months. These priorities outlined below, which focus on areas that are often the subject of class and collective action lawsuits, reflect an evolving understanding of the challenges faced by employees and employers alike.
Here are the key focus areas that the EEOC is emphasizing in 2024:
- Eliminating Barriers in Recruiting and Hiring. The EEOC is focusing on policies and practices that may be neutral on their face but are likely to result in a disparate impact felt by a protected class (and thus susceptible to class action lawsuits). For example, the use of artificial intelligence (AI) in hiring, screening tools facilitated by AI or automated systems, job advertisements that exclude or discourage certain groups from applying, and employers’ reliance on rigid job application systems that may be difficult for those with disabilities to access.
- Protecting Vulnerable Workers and Persons from Underserved Communities from Employment Discrimination. The EEOC defines vulnerable workers as: immigrant and migrant workers and workers on temporary visas; people with developmental or intellectual disabilities; workers with mental health-related disabilities; individuals with arrest or conviction records; LGBTQI+ individuals; temporary workers; older workers; individuals employed in low-wage jobs, including teenage workers employed in such jobs; survivors of gender-based violence; Native Americans/Alaska Natives; and persons with limited literacy or English proficiency. To implement this priority, the EEOC says that district offices and the agency’s federal sector program will identify vulnerable workers and underserved communities in their districts or within the federal sector for focused attention.
In furtherance of this priority, the EEOC launched its new REACH initiative just last week to ensure that these workers have access to the EEOC’s services and know their rights, making the Commission more accessible to those historically underserved. The program will hold listening sessions with stakeholders around the country to identify existing barriers to reporting discrimination, review and evaluate effective outreach strategies and tools, identify best practices for reaching vulnerable and underserved communities, and consider how to develop an increased presence in rural areas and areas far from physical EEOC office locations.
- Addressing Selected Emerging and Developing Issues. The EEOC is focused on issues that involve new or developing legal concepts or topics that are difficult or complex. By way of example, employers should expect increased scrutiny of:
- Qualification standards and inflexible policies or practices that discriminate against individuals with disabilities;
- Policies and practices for workers affected by pregnancy, childbirth, or related medical conditions under the Pregnant Workers Fairness Act and Pregnancy Discrimination Act;
- Discrimination influenced by or arising as backlash to local, national, or global events, including discriminatory bias arising as a result of recurring historical prejudices; and
- Discrimination associated with the long-term effects of the COVID-19 pandemic, including Long COVID.
- Advancing Equal Pay for All Workers. Pay equity remains a persistent issue, and the EEOC is doubling down on efforts to bridge the wage gap. The focus extends beyond gender-based pay disparities to encompass all forms of wage discrimination, including those based on race, ethnicity, and other protected characteristics.
Employers can expect increased scrutiny of pay secrecy policies, the discouraging or prohibiting of workers from asking about pay or sharing their pay with coworkers, and a reliance on past salary history or applicants’ salary expectations to set pay.
- Preserving Access to the Legal System. The EEOC will continue to scrutinize any practice that may deter employees from filing charges with the EEOC or cooperating freely in EEOC investigations. Specifically, the EEOC says it will focus on:
- Overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements;
- Unlawful, unenforceable, or otherwise improper mandatory arbitration provisions;
- Employers’ failure to keep applicant and employee data and records required by statute or EEOC regulations; and
- Retaliatory practices that could dissuade employees from exercising their rights under employment discrimination laws.
- Preventing and Remedying Systemic Harassment. The EEOC is intensifying efforts to address systemic discrimination, recognizing that isolated incidents can contribute to broader patterns of inequality. The EEOC says it will continue to focus on “strong enforcement with appropriate monetary relief and targeted equitable relief to prevent future harassment.”
Employers are encouraged to take proactive steps to identify and rectify systemic issues within their organizations.
In conclusion, the EEOC’s priorities for 2024 reflect a commitment to adapt to the evolving nature of the workplace. Employers are advised to stay informed and align their practices with these evolving priorities.
