©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 31 assertion of retaliation claims against employers allegedly obstructing employees’ efforts to participate in EEOC proceedings or otherwise oppose discrimination. The EEOC’s Enforcement Guidance on Retaliation states that retaliation occurs when an employer takes a materially adverse action because an individual has engaged, or may engage, in protected activity that is in furtherance of Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act, or Title II of the Genetic Information Nondiscrimination Act. Retaliation claims premised on EEO-related activity are comprised of three elements: (1) protected activity through “participation” in an EEO process or “opposition” to discrimination; (2) materially adverse action taken by the employer; and (3) the requisite level of causal connection between the protected activity and the materially adverse action. Of the 95 cases that were filed by the EEOC in FY 2022, 28 cases—or roughly 30%—involved retaliation claims, signaling the EEOC’s continued interest in pursuing such claims and in turn, the interests of employees’ ability to pursue their rights under the anti-discrimination laws. The proposed FY 2023-2027 SEP is largely unchanged from the prior version and focuses on overly broad agreements, including waivers, releases, non-disclosure agreements, non-disparagement agreements, and arbitration agreements; failure to maintain applicant and employee records; and practices seen as retaliatory against those who engage in protected activity. Preventing Systemic Harassment. The sixth strategic priority is preventing systemic harassment. This priority is directed at harassment, most frequently based on sex, race, disability, age, national origin, and religion. According to the EEOC, this strategic priority typically involves systemic cases. Harassment continues to be one of the most frequent complaints raised in the workplace, particularly sex discrimination. The EEOC has had plenty of opportunity to shape the law of sexual harassment through its litigation activities. Those cases often hinge on two issues: whether the alleged actions rise to the level of unlawful harassment, and whether an employer can be held liable for harassment perpetrated by employees. In FY 2022, there was a total of 16 cases involving harassment claims and 11 of those cases alleged sexual harassment. Additional information on this strategic priority and related case filings appears in subsection E. Of note, the proposed FY 2023-2027 SEP now expressly calls out harassment based on pregnancy, gender identity, and sexual orientation. The EEOC has also articulated more detailed support for employer training, including providing education, technical assistance, and policy guidance. Continued Reliance on Systemic Investigations and Litigation to Advance Strategic Goals. In the proposed FY 2023-2027 SEP, the “Commission once again reaffirms its commitment to the agency’s systemic program.” The EEOC looks to its SEP priorities to decide what types of systemic investigations and cases to pursue. Indeed, the SEP priority areas are “given precedence over other cases to maximize the EEOC’s strategic impact.” With the EEOC soon to be comprised of Commissioners appointed by the Biden administration, we anticipate a pronounced uptick in enforcement activity. Employers should expect that the Commission will continue to make good on its promise to litigate large-scale, high-impact, and high-profile investigations and cases that address the issues identified as its enforcement priorities and areas of focus.
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