20 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP 7 Staffing Company Issues In the FY 2024-2028 SEP, staffing relationships are no longer an “emerging and developing” issue, as they were in the previous SEP. Instead, the EEOC has expanded its efforts related to “the vulnerable and underserved workers”—those “who may be unaware of their rights under [EEO] laws, may be reluctant or unable to exercise their legally protected rights, or have historically been underserved by federal employment discrimination protections”—including “temporary workers.” The EEOC will prioritize “eliminating barriers in recruitments and hiring” in areas relevant to staffing, including the following: • limiting employees to temporary work when qualified for available permanent positions; • limiting access to temp-to-hire positions, or other job training or advancement opportunities; • channeling, steering or segregating individuals into specific jobs or job duties by protected group; • use of automated systems to target job advertisements, recruit applicants, or make or assist in hiring decisions where such systems intentionally exclude or adversely impact protected groups; • job advertisements that exclude or discourage certain demographic groups from applying; • restrictive application processes or systems, including online systems that are difficult for individuals with disabilities or other protected groups to access; and • screening tools or requirements that disproportionately impact workers based on protected status, including those using AI/automated systems, pre-employment tests, and background checks. The EEOC filed multiple suits related to temporary work arrangements in FY 2023. In some of those cases, the EEOC alleged that a client of a staffing company made discriminatory requests, which the staffing company honored. For example, the EEOC alleged that one company communicated with its staffing provider using “code” for discrimination, such as asking for candidates with “good finger dexterity” to fill female-dominated positions, even though employees of either sex could perform the jobs. The EEOC further alleged that the company also maintained male-dominated positions, and in the uncommon instances when women were hired for those roles, they were paid less. In another case, the EEOC alleged that a client of a staffing company and the staffing company together made decisions to segregate and assign Black employees to less desirable and lower-paying positions. In a separate case, the EEOC alleged that the staffing company independently made discriminatory choices that impacted temporary workers. For example, the EEOC accused a construction staffing company of failing to hire women for construction jobs based on stereotypes about their skills, and assigning Black employees only to certain areas based on assumptions about what its clients wanted. The result was that fewer women and Black employees were placed on assignment, and those that were assigned received fewer hours and less pay than men and white employees. These cases remind employers that decisions should be based on the ability to perform the duties of the job, and not on stereotypes or assumptions. 8. Focus Area: Underrepresentation in Particular Industries The final paragraph in the new SEP’s section on hiring maintains the 2017-2021 SEP’s emphasis on issues relating to the continued underrepresentation of women and workers of color in certain sectors like construction, manufacturing, technology, STEM and finance. We should expect the EEOC to continue efforts toward analyzing the diversity of these sector-specific workforces, and developing enforcement and litigation targets addressing any perceived gaps.
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