16 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP effort to comply with the law. Importantly, all those decisions predate the internal investigation because ‘the [employer] already had hired [comparator] as Special Assistant and already had determined his and [charging party’s] pay at the time that the Internal Investigation began.’” As noted above, under the leadership put in place by the last administration, the EEOC’s enforcement of equal pay issues trailed off a bit, as it did for the EEOC’s other priorities as well. Recent events show that the agency still has its eye on this topic. Now that the Commission is staffed with a Democratic majority, some believe it may turn back to these issues with renewed vigor. Now more than ever, it may be in employers’ best interests to be mindful of where the EEOC is attempting to drive the law in this area. C Preventing Discrimination In Recruiting and Hiring Over the past decade, the EEOC has spent a considerable amount of its enforcement budget litigating issues that it sees as barriers to recruitment and hiring. Most of its enforcement activity has focused on combating hiring practices that could result in age discrimination. But recent years have evidenced a broadening of that focus to claims ranging from sex discrimination, race discrimination, and disability discrimination. In particular, the EEOC has scrutinized how pre-employment screening tests and the use of technology in carrying out the screening process can result in discrimination against certain groups of individuals. In 2024, employers should expect the EEOC to continue its strategic efforts to develop and file litigation alleging discrimination in recruitment and hiring. While this broad SEP category is not entirely new—recruiting and hiring were also emphasized in the EEOC’s prior SEP, covering FY 2017-2021—these efforts are part of the EEOC’s ongoing bipartisan warnings to employers and human resources technology vendors about the potential discriminatory impacts of AI in hiring. As we discuss below, while AI has captured much of the media coverage regarding this issue, we believe that the EEOC’s strategic emphasis and litigation efforts in 2024 will touch on multiple aspects of hiring and recruiting, and not just AI. 1 Artificial Intelligence and Technology in Recruiting and Hiring Use of artificial intelligence broke through to the general public in a big way in 2023, and the application of these tools in the workplace was no exception. It has become increasingly common for employers to use artificial intelligence to streamline hiring and recruiting, and that technology will only become more accessible to employers in the years to come. Prior versions of the SEP announced the EEOC’s focus on recruitment and hiring practices and policies that might give rise to discrimination against members of racial, ethnic, and religious groups, as well as women, older workers, and those with disabilities. This year, the EEOC added far more detail about the types of hiring practices and policies that it intends to scrutinize, and specifically noted that it is interested in employers’ use of artificial intelligence and automated systems in that regard. 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 to particular populations, recruit workers, or aid in hiring decisions. Specifically, in the new SEP, the EEOC has committed to focusing on the use of technology, AI, and machine learning used in job advertisements, recruiting, and hiring decisions. The new SEP emphasizes an employer’s use of all technology (not just “automated systems”) in hiring and recruitment as an area strategic focus. The EEOC has, historically, focused on recruiting and hiring in part because private plaintiffs’ counsel have been unwilling to champion large scale hiring cases due to cost and challenges identifying potential “victims.” The proliferation in recent years of electronic tools available to assist employers to find talent in challenging labor markets may provide fertile ground for the EEOC on this issue.
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