©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 9 As a government agency, the EEOC is responsible for monitoring trends and developments in the law, workplace practices, and labor force demographics. Not surprisingly, the emerging issues identified by the agency have evolved over time. For example, the 2017 SEP identified five emerging and developing issues as strategic priorities: (1) qualification standards and inflexible leave policies that discriminate against individuals with disabilities; (2) accommodating pregnancy-related limitations under the Americans with Disabilities Amendments Act and Pregnancy Discrimination Act; (3) protecting lesbian, gay, bisexual, and transgender (LGBT) individuals from discrimination based on sex; (4) clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures; and (5) addressing discriminatory practices against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, arising from backlash against them from tragic events in the United States and abroad. Few issues have attracted as much of the EEOC’s attention in recent years as its campaign to have LGBTQ discrimination recognized as a prohibited form of discrimination under Title VII. That issue was finally settled in 2020 by the U.S. Supreme Court in the landmark decision of Bostock v. Clayton County Georgia, pursuant to which the U.S. Supreme Court ruled that Title VII prohibits discrimination against gay or transgender employees as a form of sex discrimination. Last year, we reported on the aftermath of the Bostock decision and in particular, the religious liberties implications that have come to light following that ruling. The FY 2024-2028 SEP has brought notable changes. The new SEP leaves just one priority largely unchanged from the prior SEP: qualification standards and inflexible policies or practices that discriminate against individuals with disabilities will remain an area of focus. On the other hand, EEOC has dropped two priorities that appeared in this section of previous SEPs. These include protecting LGBT people from discrimination, and clarifying the application of workplace civil rights protections in complex employment relationships and structures. However, those priorities have not fallen completely by the wayside. This is likely just an acknowledgment that these issues are no longer “emerging” areas, but rather have been fully embraced in the EEO universe. The SEP elaborates on statements from the earlier SEPs related to pregnancy discrimination to include protection for those affected by pregnancy, childbirth, and related medical conditions and disabilities, including under the Pregnant Workers Fairness Act. The PFWA requires covered employers18 to provide reasonable accommodations to employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” The EEOC immediately began accepting charges from claimants on June 27, 2023, the day the law went into effect. Prior versions of the SEP have discussed “backlash” discrimination, but the new SEP goes further. The EEOC has noted that discrimination against some groups can arise as a backlash in response to local, national, or global events. The EEOC identifies some groups in particular, including Jews; Muslims; racial or ethnic groups; and LGBTQI+ individuals, but also notes that the groups at issue, and the practices they are subjected to, can be expected to change during the time period covered by this SEP. Notably, the new SEP dials back the scope of the EEOC’s prior focus on COVID-19. Under the SEP, only “Long COVID” is now considered an area of strategic emphasis. This is important in part because, while the EEOC and its local counterparts have fielded thousands of charges of discrimination relating to employees’ religious and/or medical exemption requests from employers’ Covid-19 vaccination mandates, vaccination-related enforcement is not referenced in the SEP. 18 Under the PWFA, a covered employer includes private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.
RkJQdWJsaXNoZXIy OTkwMTQ4