8 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP Building further on this, the SEP includes several new but related areas of focus. These include examining practices that may limit access to work opportunities, such as advertising jobs in a manner that excludes or discourages some protected groups from applying, or denying training, internships, or apprenticeships. The EEOC also intends to scrutinize whether employers are denying opportunities to move from temporary to permanent roles, including when permanent positions are available. Likewise, the EEOC modified its earlier focus on screening tools that might disproportionately impact workers based on their protected status, with a special emphasis in the new SEP on the use of technology, AI, and machine learning used in job advertisements, recruiting, and hiring decisions. We cover this in further detail in Part II(C). This aligns with the EEOC’s increased interest in how employers use technology to recruit and hire workers. Here, the new SEP emphasizes an employer’s use of all technology (not just “automated systems”) in hiring and recruitment as an area of 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. The EEOC has also called out “continued underrepresentation” of women and workers of color in certain industries, naming construction and manufacturing, high tech, STEM, and finance in particular, and indicated its intent to monitor those benefiting from substantial federal investment. Protecting Vulnerable Workers from Underserved Communities. The second strategic enforcement priority is protecting vulnerable workers. The EEOC’s focus within this area is to combat policies and practices that impact “particularly vulnerable workers,” including immigrant and migrant workers, and the agency has expanded the categories of workers categorized as “vulnerable and underserved.” For purposes of the SEP, “vulnerable workers” are those who may be unaware of their rights under equal employment opportunity laws, or reluctant or unable to exercise those rights. The EEOC’s FY 2024-2028 SEP adds substantially to this priority as well. In a change from prior versions of the SEP, the EEOC has called out 11 different categories of vulnerable workers that it aims to safeguard: • immigrant and migrant workers; • individuals employed in low wage jobs, including teenage workers; • individuals with arrest or conviction records; • LGBTQI+ individuals; • Native Americans/Alaska Natives; • older workers; • people with developmental or intellectual disabilities; • people with mental health related disabilities; • persons with limited literacy or English proficiency; • temporary workers; and • survivors of gender-based violence. Employers in sectors that engage many members of these communities, or who have operations in areas of the country with large populations of such workers, may expect increased inquiry. Addressing Selected Emerging and Developing Issues. The third strategic priority addresses selected emerging and developing issues. As the name implies, the EEOC may adapt its focus within this priority on a year-to-year basis in accordance with developing case law. Thus, this strategic priority is something of a “wild card.”
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