©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 7 discrimination in the workplace.” 13 The Commission’s six major enforcement priorities have remained relatively consistent across multiple iterations of the SEP. But the EEOC can and has changed how it interprets those priorities over the life of those Plans, which has often led to a shift in how the EEOC approaches litigation and the topics and issues it chooses to enforce in the federal courts.14 According to the EEOC “the purpose of the [Strategic Enforcement Priorities] is to focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace.” 15 The 2024-2028 SEP reaffirmed the importance of “systemic” cases to the EEOC’s overall mission. Systemic cases are those with a strategic impact, meaning they affect how the law influences a particular community, entity, or industry. The EEOC continues to place special emphasis on systemic lawsuits. In November 2019, the EEOC announced that it would be replacing the combined Performance Accountability Report that was formerly published in November of each year.16 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 describes 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. In this year’s Agency Financial Report, the EEOC reported that the Commission filed 25 systemic discrimination lawsuits, nearly doubling the number of cases it filed in FY 2022, 2021, and 2020, when it filed only 13 each year.17 2. Particular FY 2023 Strategic Enforcement Priorities The EEOC focused on six different strategic enforcement priorities in FY 2023, including: (1) eliminating barriers in recruitment and hiring; (2) protecting vulnerable workers from underserved communities; (3) addressing selected emerging and developing issues; (4) advancing equal pay for all workers; (5) preserving access to the legal system; and (6) preventing and remedying 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 recruiting and hiring practices that “discriminate on any basis unlawful under the statutes EEOC enforces, including sex, race, national origin, color, religion, age, and disability.” The EEOC has spent a 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 the use of pre-employment screening tests. The FY 2024-2028 SEP added far more detail about the types of hiring practices and policies that the EEOC intends to scrutinize. For example, prior SEPs described the EEOC’s intention to prevent steering members of protected groups into specific (often less desirable) 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. 13 U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017-2021, www.eeoc.gov/eeoc/plan/sep-2017.cfm. 14 See Christopher J. DeGroff, Matthew J. Gagnon, and Ala Salameh, What A Long Strange Year It’s Been …The EEOC’s Fiscal Year Comes To An Uncharacteristically Quiet Close, Workplace Class Action Blog (Sept. 30, 2019), https://www.workplaceclassaction.com/2019/09/what-a-longstrange-year-its-been-the-eeocs-fiscal-year-comes-to-an-uncharacteristically-quiet-close/. 15 U.S. Equal Employment Opportunity Commission, Press Release: EEOC Approves Strategic Enforcement Plan, https://www.eeoc.gov/newsroom/ eeoc-approves-strategic-enforcement-plan. 16 U.S. Equal Employment Opportunity Commission, Fiscal Year 2019 Agency Financial Report, at 9, https://www.eeoc.gov/fiscal-year-2019-agencyfinancial-report-us-equal-employment-opportunity-commission. 17 U.S. Equal Employment Opportunity Commission, Fiscal Year 2023 Agency Financial Report, https://www.eeoc.gov/fiscal-year-2023-agencyfinancial-report; U.S. Equal Employment Opportunity Commission, Fiscal Year 2022 Agency Financial Report, https://www.eeoc.gov/eeoc-fiscalyear-2022-agency-financial-report; U.S. Equal Employment Opportunity Commission, Fiscal Year 2021 Agency Financial Report, https://www.eeoc. gov/2021-annual-performance-report-apr; U.S. Equal Employment Opportunity Commission, Fiscal Year 2020 Agency Financial Report, https:// www.eeoc.gov/fiscal-year-2020-agency-financial-report-us-equal-employment-opportunity-commission.
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