©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 11 Of note, the FY 2024-2028 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 focusing on promoting comprehensive anti-harassment programs and practices and providing education, technical assistance, and policy guidance. Continued Reliance on Systemic Investigations and Litigation to Advance Strategic Goals. In the FY 2024-2028 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.” Now that the EEOC is under Democratic control, the Commission has made a roaring return to its prior levels of litigation activity after a few relatively quiet years. Employers can expect that the EEOC will conduct a more aggressive enforcement agenda with respect to each of the above-referenced priorities. 3 EEOC and Department of Labor Memorandum of Understanding On September 13, 2023, the EEOC and the Department of Labor Wage Hour Division (WHD) entered into a Memorandum of Understanding (MOU) enabling information sharing, joint investigations, training, and outreach.19 The MOU now empowers the agencies’ field staff to coordinate efforts on both individual matters and larger investigations.20 The MOU’s information-sharing and other contemplated coordinated activity provisions cover a broad range of activities, touching on all aspects of EEOC and WHD jurisdiction. For example, the MOU explicitly describes that each agency will make complaint referrals to the other, and that the two will share complaint or investigative files, EEO-1 reports and FLSA records, and “statistical analyses or summaries,” and that the agencies “will explore ways to efficiently facilitate” the data sharing. Information sharing under the MOU is not limited to just top-level agency officials in Washington, DC; leadership from each agency’s District (or Regional) offices may request information without the need to first obtain approval from HQ in Washington, DC. Importantly, the EEOC District Directors and Regional Attorneys also may designate other EEOC employees to make the request. This means that front-line EEOC staff involved in enforcement and litigation can quickly assess a wide range of information held by WHD. It is also noteworthy that the MOU allows any EEOC Commissioner to directly request information from WHD, without first channeling the request through EEOC career staff. This is significant because it enables EEOC Commissioners from different political parties than the Chair to obtain information directly from WHD. Significantly, the MOU specifically contemplates that the EEOC may share employer EEO-1 reports with the WHD. This is notable because Title VII prohibits the EEOC from disclosing EEO report data to the public, but the MOU does not bind the WHD in the same way. Instead, the WHD agrees to “observe” Title VII’s confidentiality requirements. Employers can expect the MOU to lead to more information sharing between the EEOC and WHD when it comes to individual charges and investigations. (The MOU contains a high-level framework for coordinated investigations involving the same employer.) The potential for data sharing to fuel broader systemic investigations also should catch the attention of all employers. The ability to gather additional data through this partnership with the WHD adds another powerful tool to the EEOC’s investigative powers. 19 U.S. Equal Employment Opportunity Commission Memorandum of Understanding Between the U.S. Department of Labor, Wage and Hour Division and the U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/memorandum-understanding-between-us-department-labor-wageand-hour-division-and-us-equal-employment. 20 See Rachel See, Christopher DeGroff, and Andrew Scroggins, EEOC and DOL Join Forces – What the Alliance Means for Employers, Workplace Class Action Blog (Sept. 18, 2023), https://www.workplaceclassaction.com/2023/09/eeoc-and-dol-join-forces-what-the-alliance-means-for-employers/.
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