28 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP Report that used to be published in November of each year.22 Among other things, the annual Performance Accountability Report contained data regarding the number of systemic cases being handled by the EEOC. The EEOC now publishes an Agency Financial Report in November and a separate Annual Performance Report in February along with the EEOC’s Congressional Budget Justification. The Annual Performance Report reports on the progress of the EEOC’s efforts to achieve its strategic goals and objectives. Employers will have to wait for that Report in February for updated data regarding the EEOC’s pursuit of systemic cases. The EEOC reported in this year’s Agency Financial Report that the Commission again filed only 13 systemic cases, the same amount of flings as in FY 2021 and down from former years. For example, in FY 2019, there were 17 filings and 37 in FY 2018.23 2 FY 2022 Strategic Enforcement Priorities The EEOC focused on six different strategic enforcement priorities in FY 2022, including: (1) eliminating barriers in recruitment and hiring; (2) protecting vulnerable workers; (3) addressing selected emerging and developing issues; (4) ensuring equal pay protection for all workers; (5) preserving access to the legal system; and (6) preventing systemic harassment. Eliminating Barriers In Recruitment And Hiring. The first strategic enforcement priority is eliminating barriers in recruitment and hiring. The EEOC’s focus within this priority is to address discriminatory recruiting and hiring practices which target “racial, ethnic, and religious groups, older workers, women, and people with disabilities.” According to the EEOC, addressing this priority typically involves strategic, systemic cases. The EEOC has spent considerable amount of its enforcement budget litigating issues that it sees as barriers to recruitment and hiring. In recent years, there have been a number of judicial decisions involving the EEOC’s attempts to combat discrimination, including through the use of pre‑employment screening tests. This past fiscal year, there was a focus on how technological advancements can result in discrimination, particularly against those with disabilities. We cover this in further detail in subsection D(2)(a). The proposed FY 2023-2027 SEP adds specific call outs for prevent barriers in the workplace for pregnant workers and those with pregnancy-related medical conditions, as well as LGBTQI+ individuals. The EEOC’s proposal also added far more detail about the types of hiring practices and policies that it intends to scrutinize. For example, prior SEPs described the EEOC’s intention to prevent steering members of protected groups into specific jobs. The proposed SEP goes further to explain that the EEOC also will be examining whether employers are segregating workers in jobs, or by job duties, based on membership in a protected group. Building further on this, the proposed SEP includes several new but related areas of focus. These include looking at practices that may limit access to work opportunities, such as advertising jobs in a manner that excludes or discourages some protected groups from applying, or denying training, internships, or apprenticeships. The EEOC also intends to scrutinize whether businesses are denying opportunities to move from temporary to permanent roles, including when permanent positions are available. Likewise, the EEOC modified its earlier focus on screening tools that might disproportionately impact workers based on their protected status, noting explicitly that it is interested in employers’ use of artificial intelligence and automated systems in that regard. This aligns with the EEOC’s increased interest in how employers use technology to recruit and hire workers. Here, the Commission has emphasized its intent to investigate whether protected groups might be harmed—whether intentionally or not—by automated systems used to target job advertisements 22 U.S. Equal Employment Opportunity Commission, Fiscal Year 2019 Agency Financial Report, at 9, www.eeoc.gov/fiscal-year-2019-agency-financialreport-us-equal-employment-opportunity-commission. 23 U.S. Equal Employment Opportunity Commission, Fiscal Year 2020 Agency Financial Report, at 11, www.eeoc.gov/sites/default/files/2020-11/2020AFR.pdf; U.S. Equal Employment Opportunity Commission, Fiscal Year 2022 Agency Financial Report, www.eeoc.gov/eeoc-fiscal-year-2022-agencyfinancial-report.
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