Table of Contents ii-iii iv-v 1-2 3-4 5-6 7-8 9-10 11-12 13-14 15-16 17-18 19-20 21-22 23-24 25-26 27-28 29-30 31-32 33-34 35-36 37-38 39-40 41-42 43-44 45-46 47-48 49-50 51-52 53-54 55-56 57-58 59-60 61-62 63-64 65-66 67-68 69-70 71-72 73-74 75-76 77-78 79-80 81-82 Back Cover

EEOC-Initiated Litigation - 2025 Edition

2025 Edition EEOC-Initiated Litigation

©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | i EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP Dear Clients and Friends, Seyfarth Shaw is once again pleased to provide you with the latest edition of our annual analysis of trends and developments in Equal Employment Opportunity Commission litigation, EEOC-Initiated Litigation: 2025 Edition. This desk reference compiles, analyzes, and categorizes the major case filings and decisions involving the EEOC in 2024 and recaps the major policy and political changes we observed in the past year. 2024 has been a particularly active year for politics, and we have included our observations and predictions throughout this reference. Our goal is to guide our readers through all aspects of EEOC-initiated action, and to empower corporate counsel, human resources professionals, and operations teams to make sound and informed legal and business decisions. We hope that you find this report useful. And there is so much to explore: 2024 was a whirlwind of change and activity for the agency. We saw the Commission advance under a Democratic majority and a new General Counsel. The moves this Commission has made, however, will likely be impacted by a second Trump administration, that has promised to make sweeping changes to all levels of government. What these developments mean for employers will be discussed in detail herein. Part I of this reference introduces the key players in the EEOC, and how their unique views on employment and societal issues will shape real-world application of EEO statutes. Part II is an in-depth review of the EEOC’s evolving strategic priorities. This includes a fascinating overview of the emerging intersection between Artificial Intelligence issues and the EEOC’s agenda, equal pay protections and how the agency plans to address historical pay disparities, a new look at preventing harassment in the workplace, and the EEOC’s plans to double-down on large-scale litigation, among a host of other topics. Back by popular demand, Part III includes a detailed profile of each EEOC District. Practitioners who work with and litigate against the EEOC quickly appreciate that each District has a unique personality and often differing substantive focus areas. It is all about location, location, location. Part IV paints the EEOC by the numbers: an empirical analysis of how the EEOC actually targeted employment issues in 2024, and how those trends will translate to activity in 2025. Part V is a deeper dive into how the EEOC has addressed particular industries, identifying which sectors tend to land in the EEOC’s crosshairs most often, why, and for which issues. Part VI explores the various ways EEOC actions are resolved, from confidential conciliation to Court-ordered Consent Decrees. Finally, Part VII provides related guidance concerning how the EEOC leverages the media at various stages in a case. A special thanks to the team of lawyers and professionals who made this publication possible with tireless efforts throughout the year. This book is meant to be the start of a conversation, and we are standing by to address any further questions or issues our readers wish to share. Andrew L. Scroggins (Editor) Christopher J. DeGroff (Editor)

©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | iii ii | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP AUTHORS A particular acknowledgment of all of the tireless efforts of Practice Development Manager Amy Abate in developing this resource. Linda C. Schoonmaker Partner Houston (713) 860-0083 lschoonmaker@seyfarth.com Adam J. Rongo Associate Chicago (312) 460-5959 arongo@seyfarth.com Samantha L. Brooks Associate Washington, DC (202) 828-3560 sbrooks@seyfarth.com Rachel V. See Senior Counsel Washington, DC (202) 772-9731 rsee@seyfarth.com Alexandra R. Hassell Staff Attorney Boston (617) 946-8347 ahassell@seyfarth.com Nicholas A. Gillard-Byers Partner Seattle (206) 946-4997 ngillard-byers@seyfarth.com Elizabeth L. Humphrey Associate Houston (713) 238-1809 ehumphrey@seyfarth.com Michael D. Jacobsen Partner Chicago (312) 460-5232 mjacobsen@seyfarth.com Christopher W. Kelleher Senior Counsel Boston (617) 946-4811 ckelleher@seyfarth.com Taylor Iaculla Associate Chicago (312) 460-5796 tiaculla@seyfarth.com Yoon-Woo Nam Partner Sacramento (916) 498-7023 ynam@seyfarth.com James P. Nasiri Associate Chicago (312) 460-5976 jnasiri@seyfarth.com Clara L. Rademacher Associate San Francisco (415) 732-1126 crademacher@seyfarth.com J. Todd Bernhardt Associate San Francisco (415) 544-1071 tbernhardt@seyfarth.com Ridhima Bhalla Associate Chicago (312) 460-5763 rbhalla@seyfarth.com Hannah Sosenko Associate Chicago (312 460-5294 hsosenko@seyfarth.com Andrew L. Scroggins Partner and Complex Discrimination Litigation Practice Group Co-Chair Chicago, Co-Editor (312) 460-5275 ascroggins@seyfarth.com Hillary J. Massey Senior Counsel Boston (617) 946-4879 hmassey@seyfarth.com Christopher J. DeGroff Partner and Complex Discrimination Litigation Practice Group Co-Chair Chicago, Co-Editor (312) 460-5982 cdegroff@seyfarth.com

TABLE OF CONTENTS PART I: Agency Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Equal Employment Opportunity Commission Composition and Background . . . . . .1 B. EEOC Staffing Challenges in FY 2024 and Beyond . . . . . . . . . . . . . . . . . . 2 C. EEOCProfiles.....................................5 PART II: EEOC’s Enforcement Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. EEOC’sFY2024CornerstoneDocuments . . . . . . . . . . . . . . . . . . . . . . 7 1. Background................................... 7 2. Particular FY 2024 Strategic Enforcement Priorities . . . . . . . . . . . . . . 8 3. EEOC and Wage Hour Division Memorandum of Understanding . . . . . . . . .12 4. Impact of Loper Bright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 5. Recent EEOC Guidance on Vision and Hearing . . . . . . . . . . . . . . . . . 13 6. Focus Area: Hearing Impairment Issues in Recruiting and Hiring . . . . . . . . 14 7. StaffingCompanyIssues............................15 8. Amicus Briefs and Other Noteworthy Filings . . . . . . . . . . . . . . . . . . 16 B. EEOCFocusonEqualPayProtections . . . . . . . . . . . . . . . . . . . . . . . .24 C. Preventing Discrimination In Recruiting and Hiring . . . . . . . . . . . . . . . . . . 28 1. Artificial Intelligence and Technology in Recruiting and Hiring . . . . . . . . . 28 2. Other Technology in Hiring and the Path Ahead on AI . . . . . . . . . . . . . .30 3. JobAdvertisements.............................. 31 4. Job Segregation or Steering Based on Protected Characteristics . . . . . . . 31 5. Focus Area: Underrepresentation in Particular Industries . . . . . . . . . . . 32 D. Preventing Harassment In The Workplace . . . . . . . . . . . . . . . . . . . . . . 32 E. EEOC’s Emphasis on Combatting Systemic Discrimination . . . . . . . . . . . . . 35 PART III: District Office Profiles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 PART IV: By The Numbers: EEOC Data Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 A. Trends in EEOC Federal Court Filings In FY 2024 . . . . . . . . . . . . . . . . . . . 54 B. EEOCChargeDataAnalysis .............................58 PART V: Industry Focus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 A. Hospitality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 B. Healthcare......................................63 C. Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 D. Retail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65 E. Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 F. Transportation&Logistics..............................68 PART VI: EEOC Case Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 A. ResolutionThroughConciliation . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 B. ConsentDecrees...................................71 1. General Description of a Consent Decree . . . . . . . . . . . . . . . . . . . .71 2. Common Provisions of a Consent Decree . . . . . . . . . . . . . . . . . . . . 72 C. TrialJudgment....................................75 PARTVII: MediaandPublicityElementsofanEEOCCase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77 Seyfarth’s Complex Litigation Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 ©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | v iv | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP

1 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP PART I: Agency Composition A . Equal Employment Opportunity Commission Composition and Background In FY 2024, under the leadership of Chair Charlotte A. Burrows, the EEOC advanced Democratic policy priorities. President Biden’s nominee for the EEOC General Counsel position, Karla Gilbride, was confirmed by the Senate on October 17, 2023, giving the EEOC a full complement of Senate-confirmed Democratic political leadership for almost all of FY 2024. With the July 1 expiration of the term of Commissioner Keith E. Sonderling,1 a Republican appointee, the Commission ended FY 2024 with a 3-1 Democratic majority. In FY 2024, Chair Burrows wielded her Democratic majority on the Commission to advance some policy initiatives over the objection of Republicans on the Commission, including issuing the EEOC’s long-awaited enforcement guidance on harassment in the workplace and its interpretative guidance to implement the Pregnant Workers Fairness Act (PWFA). The vast majority of the EEOC’s operations, including its litigation and enforcement activity, are not subject to political considerations, are conducted with tacit or explicit bipartisan approval from its political leadership, and are left squarely in the hands of the EEOC’s career leadership and front-line staff in the various District Offices throughout the country. This bipartisan approach is reflected in the Commission’s recent voting records. For example, in FY 2024, Republican Commissioner Andrea Lucas voted to approve 22 of the 24 litigation recommendations (92%) that came before the Commission for a vote. With the 2024 election of President Donald Trump and Republicans regaining control of the Senate, the winds of political change will immediately reshape the EEOC’s political leadership. The Commission’s Senate-confirmed leadership team includes five Commission members, each nominated by the President and confirmed by the Senate for a five-year term. The incumbent President designates one of the Commissioners as the Chair, and another Commissioner can be designated as the Vice Chair. Of the five Commissioners, no more than three may be members of the same political party, a statutory requirement notionally promoting bipartisanship that outlives administration changes. The EEOC’s General Counsel is nominated by the President and confirmed by the Senate for a four-year term. After his second inauguration, one of President Trump’s first executive actions was to designate Commissioner Andrea Lucas as Acting Chair. President Trump will be able to nominate a Republican to fill the current vacancy on the Commission, and upon that nominee’s confirmation by the Senate, there would be two Republicans and three Democrats on the EEOC. Assuming all of the currently serving Commissioners serve out the remainder of their terms, Republicans would not have a majority on the EEOC until the Senate confirms a replacement for Democrat Commissioner Jocelyn Samuels, whose term on the Commission expires on July 1, 2026. Even without a majority, the EEOC Chair (or an Acting Chair) can, on her own authority, issue subregulatory guidance such as technical assistance. Notable prior EEOC technical assistance documents, issued solely under the authority of the Chair, include the EEOC’s 2022 technical assistance regarding artificial intelligence and the Americans With Disabilities Act, its 2023 technical assistance regarding Title VII and AI, and the EEOC’s COVID-19 “What You Should Know” document, which was updated frequently during the COVID-19 pandemic. However, the issuance of formal EEOC guidance (including conducting notice-and-comment rulemaking pursuant to the Administrative Procedures Act) requires the approval by a majority of the Commissioners. President Trump’s Chair or Acting Chair could, on her own authority, revoke or revise technical assistance documents issued solely under the authority of a previous Chair. But she would not be able to revoke existing formal guidance, or start new rulemaking initiatives, without the approval of the full Commission. This means 1 While Commissioner Sonderling’s term on the Commission expired on July 1, 2024, Title VII allowed him to remain on the Commission for an additional 60 days. Title VII also allows Commissioners to hold over for even longer periods if the President nominates a replacement, but President Biden did not do so. Thus, Commissioner Sonderling left the EEOC on September 1, 2024. ©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 2 that without a Republican majority, President Trump’s EEOC Chair could not initiate formal rulemaking under the Administrative Procedures Act to revoke the EEOC’s recent Pregnant Workers’ Fairness Act rules, or the EEOC’s enforcement guidance on harassment in the workplace, nor could she commence any new regulatory initiatives under the APA. Similarly, modifications to the EEOC’s Strategic Plan or Strategic Enforcement Plan—discussed at length in Section II A.—would require Commission approval. President Biden at the start of his term fired then EEOC General Counsel Sharon Gustafson. President Trump has signaled his intent to treat that act as precedent and to fire EEOC General Counsel Karla Gilbride in the first days of his administration. Pursuant to the Federal Vacancies Reform Act, the current Deputy General Counsel, a career EEOC official, would be elevated to Acting General Counsel, and he would serve in that role until President Trump’s nominee for the EEOC GC position is confirmed by the Republicancontrolled Senate. And while the Commission has statutory responsibility for deciding when to commence or intervene in litigation against private sector employers, Title VII confers upon the General Counsel responsibility “for the conduct of litigation” by the EEOC.2 The Commission has previously delegated some of its authority to the General Counsel, but the extent of the delegation has changed over time. The Commission’s delegation of litigation authority that was in effect in FY 2024 was last modified in the waning days of the first Trump Administration. This delegation, effective January 13, 2021, asserted a greater level of involvement of the Commissioners in approving litigation recommendations. In particular, this modification provided for an initial review by the members of the Commission of the Office of General Counsel’s litigation recommendations, and, upon the request of a majority of the Commissioners, the General Counsel would be required to submit the matter to the Commission for a vote. Even so, consistent with previous years, in FY 2024 the vast majority of litigation matters presented to the Commission for a vote were approved on a bipartisan basis. In public comments, Chair Burrows previously expressed her desire to revisit the Commission’s litigation delegation processes. As of the date of this publication, the Democrats on the EEOC have not modified those procedures. B . EEOC Staffing Challenges in FY 2024 and Beyond Title VII confers on the EEOC’s Chair the sole responsibility “for the administrative operations of the Commission”.3 The Chair is responsible for hiring members of the career Senior Executive Service, and evaluating and managing the EEOC’s cadre of Senior Executives. In other words, the Chair is directly responsible for hiring and evaluating the performance of the 15 District Directors across the country, as well as other Senior Executives in the agency. Moreover, the Chair’s responsibility for the “administrative operations” of the EEOC includes the ability, exercised through the EEOC’s Chief Operating Officer, to allocate the EEOC’s budget to its various programs and operational efforts. While the Commission as a whole must vote on certain appropriations, the Chair has broad authority in making adjustments – both large and small – to how the Commission spends its money. The Chair and her staff are responsible for advocating before Congress for increases to the EEOC’s budget, and the Chair is also responsible for deciding exactly how the EEOC spends additional money appropriated by Congress. During the early years of the Biden Administration, the EEOC received significant budget increases, and Chair Burrows used those budget increases to invest in hiring front-line enforcement and litigation personnel. Recently, the EEOC has faced significant budget challenges. In FY 2023, the EEOC received $455 million in funding, and for FY 2024 the EEOC requested an increase of approximately $26 million (5.7%). However, Congress declined the request and held the EEOC’s budget at the previous year’s amount. The EEOC suffered another blow when President Biden in December 2023 issued an executive order that granted 2 See Section 705(b)(1). 3 See Section 705(a).

©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 4 3 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP federal employees a 5.2% pay raise. Pay and benefits accounted for 74% of the EEOC’s budget in FY 2024, so this unfunded pay increase, combined with the unchanged budget allocation, created a significant budget crunch for the agency. In July 2024, Chair Burrows explained to EEOC employees that the agency had implemented multiple fiscal austerity measures, including dialing back hiring, making “significant across-the-board cuts, with deeper cuts to some programs”, including reducing travel and eliminating most training, and delaying expenditures such as office moves. Despite these austerity measures, the EEOC still faced a budget shortfall, and EEOC leadership even began preparations to furlough all employees for one day (without pay) at the end of August. No other federal agency announced similar furlough plans. Ultimately the furlough plan was not put into action, but the possibility it may have been needed illustrates how thinly stretched were the EEOC’s resources in FY 2024. Despite these significant budget challenges, at the end of FY 2024 the EEOC reported a net increase of employees over its FY 2023 levels. The EEOC’s 2,246 FTE at the end of FY 2024 represented a net increase of 103 FTE (4.8%) over its FY 2023 headcount. This overall growth in headcount continued the EEOC’s expansion during the Biden administration, albeit at a much slower pace than FY 2023’s dramatic 6.47% increase and FY 2022’s 5.92% increase. The EEOC’s continued focus on growing its workforce has resulted in significant cumulative growth over the past years, with the EEOC’s FY 2024 headcount of 2,246 FTE representing a 15.8% increase over its headcount at the end of FY 2020. The EEOC’s Agency Financial Reports (AFRs) for FY 2022 and FY 2023 emphasized that the agency’s hiring was focused on front-line positions (that is, investigators, mediators, attorneys, and administrative staff who support those roles). The FY 2024 AFR does not distinguish between front-line hires and other positions. The following table and chart summarize what we know about the EEOC’s headcount from the EEOC’s recent Agency Financial Reports:4 “Front Line” Positions Filled Total Hires Total EEOC Headcount at end of FY % Increase, Total Headcount FY 2020 260 1,939 -5.92% FY 2021 “ Predominately front-line” “ More than 450 authorized” 1,927 -0.62% FY 2022 297 352 (authorized) 2,041 5.92% FY 2023 338 493 (actual) 2,173 6.47% FY 2024 103 (net) 2,246 4.81% 4 See U.S. Equal Employment Opportunity Commission, Fiscal Year 2024 Agency Financial Report (Nov. 15, 2024), https://www.eeoc.gov/fiscal-year2024-agency-financial-report; U.S. Equal Employment Opportunity Commission, Fiscal Year 2023 Agency Financial Report (Nov. 15, 2023), https://www.eeoc.gov/fiscal-year-2023-agency-financial-report; U.S. Equal Employment Opportunity Commission, EEOC Fiscal Year 2022 Agency Financial Report (Nov. 9, 2022), https://www.eeoc.gov/eeoc-fiscal-year-2022-agency-financial-report; U.S. Equal Employment Opportunity Commission, Fiscal Year 2021 Agency Financial Report (2021), https://www.eeoc.gov/fiscal-year-2021-agency-financial-report; U.S. Equal Employment Opportunity Commission, Fiscal Year 2020 Agency Financial Report U.S. Equal Employment Opportunity Commission (2020), https://www.eeoc.gov/fiscal-year-2020-agency-financial-report-us-equal-employment-opportunity-commission; U.S. Equal Employment Opportunity Commission, Fiscal Year 2019 Agency Financial Report U.S. Equal Employment Opportunity Commission (2019), https://www.eeoc.gov/fiscal-year2019-agency-financial-report-us-equal-employment-opportunity-commission; U.S. Equal Employment Opportunity Commission, Performance and Accountability Report Fiscal Year 2018 (2018), https://www.eeoc.gov/performance-and-accountability-report-fiscal-year-2018. Along with the incoming heads of all federal agencies, the Chair or Acting Chair of the EEOC under President Trump’s second administration will face intense pressure to cut programs and headcount. While as of the time of publication specific policy or budget proposals from the incoming Trump Administration or the “Department of Government Efficiency” have not been released, some sources suggest that the Department of Labor budget will return to the levels seen at the end of the first Trump Administration, a significant reduction from the current state. The EEOC will likely face significant challenges in continuing the headcount growth trend it has experienced over the past years under the Biden administration. Moreover, given the austerity measures that the Agency implemented in 2024, one can infer that the EEOC has already made significant cuts to discretionary spending, including travel, training, office moves, and other non-personnel expenditures. Thus, the new Republican political leadership at the EEOC may very well be facing a budget that has very little room to trim, other than through personnel costs. 1,700 1,800 1,900 2,000 2,100 2,200 2,300 2024 2023 2022 2021 2020 2019 2018 EEOC Employees (FTE) at End of Fiscal Year ©2025 Seyfarth Shaw LLP

5 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP C . EEOC Profiles Jocelyn Samuels (Vice Chair, Democrat) Jocelyn Samuels joined the EEOC as a Commissioner on October 14, 2020, and on July 14, 2021, was confirmed for a second term expiring July 1, 2026. She has been designated by President Biden as the Commission’s Vice Chair. Immediately prior to joining the Commission, she led the Williams Institute, focusing on LGBTQI+ issues. During the Obama administration, she served in leadership positions at the U.S. Department of Health & Human Services and the U.S. Department of Justice. Kalpana Kotagal (Commissioner, Democrat) Kalpana Kotagal joined the EEOC on August 9, 2023, and her term expires July 1, 2027. Before joining the Commission, she was in private practice, focusing on litigating worker-side civil rights issues. She is a co-author of the “Inclusion Rider” – a voluntary agreement between actors, filmmakers and studios aimed at advancing equal opportunity in the film industry both behind the camera and in front of it. Andrea R . Lucas (Acting Chair, Republican) Andrea R. Lucas joined the EEOC in 2020 and became Acting Chair on January 20, 2025. Her term expires July 1, 2025. Prior to her appointment to the EEOC, she practiced management-side employment law at a large Washington, D.C. law firm. Acting Chair Lucas continues to garner media coverage for her cautionary advice to employers regarding their diversity, equity, and inclusion (DEI) programs. She is also known for emphasizing issues relating to religious discrimination, accommodation, and inclusion; accommodations for pregnancy, childbirth, and related medical conditions; and disability accommodation. Commissioner Lucas’ voting patterns demonstrate that she was a potential “swing” vote when the Commission was under Democratic control. ©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 6 Keith E . Sonderling (Former Commissioner, Republican, Term Concluded July 1, 2024) Keith E. Sonderling joined the EEOC in 2020, for a term that expired on July 1, 2024. Commissioner Sonderling departed the EEOC on September 1. Until January of 2021, he served as the Commission’s Vice-Chair. Before joining the EEOC, he served as the Acting and Deputy Administrator of the Wage and Hour Division at the U.S. Department of Labor. Before joining the Department of Labor in 2017, he was a management-side labor and employment lawyer in Florida. Commissioner Sonderling speaks and writes frequently on the benefits and potential harms of using artificial intelligence-based technology in the workplace. Karla Gilbride (General Counsel, Democrat) Karla Gilbride was nominated by President Biden as General Counsel of the EEOC, and was confirmed by the Senate on October 17, 2023 to a four-year term. Prior to Gilbride’s confirmation, the EEOC had been without a Senate-confirmed General Counsel since President Biden’s firing in March 2021 of General Counsel Sharon Gustafson, who had been nominated by President Trump. Gilbride previously litigated cases on behalf of workers and consumers. In May of 2022, she argued before the Supreme Court and obtained a 9-0 victory in a case involving the impact of delay on the enforcement of arbitration clauses, Morgan v. Sundance, Inc., 596 US 411, 142 S.Ct. 1708 (2022). Charlotte A . Burrows (Commissioner, Democrat) Charlotte Burrows has been a Commissioner at the EEOC since 2014, and is currently serving her third term. First nominated to the Commission by President Obama in 2014, she is now serving her third term, which expires July 1, 2028. She was designated by President Biden as the Chair of the Commission. Prior to her appointment to the EEOC, she served as Associate Deputy Attorney General at the U.S. Department of Justice (DOJ), and on the staff of Senator Edward M. Kennedy on the Senate Judiciary Committee.

©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 8 7 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP PART II: EEOC’s Enforcement Priorities The following section outlines the foundational EEOC documents that answer two fundamental agency questions: what are the EEOC’s strategic priorities, and how will the EEOC effectuate those priorities? The EEOC is quite clear that, at least for the foreseeable future, it intends to address six key areas. 1 Eliminating Barriers In Recruitment and Hiring 4Advancing Equal Pay for All Workers 2Protecting Vulnerable Workers and Persons from Underserved Communities 5Preserving Access to the Legal System 3Addressing Selected Emerging and Developing Issues 6Preventing and Remedying Systemic Harassment A EEOC’s FY 2024 Cornerstone Documents 1 Background The EEOC released its Strategic Enforcement Plan (“SEP”) for fiscal years 2024-2028 on September 21, 2023.5 The SEP identifies the agency’s enforcement priorities. Along with the SEP, the EEOC also outlines its enforcement strategies through its Strategic Plan.6 Despite the similarity in their titles, these plan documents serve two distinct purposes. The SEP lays out the Commission’s specific priorities by highlighting certain areas of law or groups of workers that it will aim to address over the next four years. A separate document known as the Strategic Plan describes how the EEOC will achieve its strategic mission, including executing on the priorities contained in the SEP. In the words of the EEOC, the Strategic Plan “establishes a framework for achieving the EEOC’s mission to ‘prevent and remedy unlawful employment discrimination and advance equal employment opportunity for all.’” 7 The EEOC first unveiled its SEP in December 2012, stating that the plan “established substantive area priorities and set forth strategies to integrate all components of EEOC’s private, public, and federal sector enforcement to have a sustainable impact in advancing equal opportunity and freedom from discrimination in the workplace.” 8 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.9 According 5 U.S. Equal Employment Opportunity Commission, Press Release: EEOC Releases Strategic Enforcement Plan (Sept. 21, 2023), https://www.eeoc. gov/newsroom/eeoc-releases-strategic-enforcement-plan. 6 See Christopher DeGroff, James Nasiri, and Rachel See, EEOC Adopts 2022-2026 Strategic Plan With an Emphasis on Large-Scale Litigation, Improving Internal EEOC Processes, Workplace Class Action Blog (Aug. 23, 2023), https://www.workplaceclassaction.com/2023/08/eeoc-adopts2022-2026-strategic-plan-with-an-emphasis-on-large-scale-litigation-improving-internal-eeoc-processes/. 7 U.S. Equal Employment Opportunity Commission Strategic Plan 2022-2026, eeoc.gov/eeoc-strategic-plan-2022-2026#. 8 U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017-2021, www.eeoc.gov/eeoc/plan/sep-2017.cfm. 9 See Christopher J. DeGroff, Andrew L. Scroggins, Samantha Brooks, James P. Nasiri, and Ridhima Bhalla, EEOC Case Filings Plummet: A Look at the EEOC’s Surprisingly Sluggish FY 2024, Workplace Class Action Blog (Sept. 30, 2024), https://www.workplaceclassaction.com/2024/09/eeoc-casefilings-plummet-a-look-at-the-eeocs-surprisingly-sluggish-fy-2024/. 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.” 10 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 it formerly published annually in November.11 Among other things, the annual Performance Accountability Report contained data regarding the number of systemic cases being handled by the EEOC. Since the change, the EEOC now publishes an Agency Financial Report in November and a separate Annual Performance Report in February along with its 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 13 systemic discrimination lawsuits, which is the same number per year that the EEOC filed in FY 2022, 2021, and 2020, but only about half of the 25 systemic discrimination lawsuits that it filed in FY 2023.12 2. Particular FY 2024 Strategic Enforcement Priorities As mentioned above, the EEOC focused on six different strategic enforcement priorities in FY 2024, 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. Importantly, these priorities are not mutually exclusive. The EEOC can and does look for opportunities to pursue matters that check more than one of these strategic boxes. 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 FY 2024-2028 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. 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. 10 U.S. Equal Employment Opportunity Commission, Press Release: EEOC Approves Strategic Enforcement Plan, https://www.eeoc.gov/newsroom/ eeoc-approves-strategic-enforcement-plan. 11 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. 12 U.S. Equal Employment Opportunity Commission, Fiscal Year 2024 EEOC Litigation Focuses on Emerging Issues and Underserved, Vulnerable Populations (Oct. 9, 2024), https://www.eeoc.gov/newsroom/fiscal-year-2024-eeoc-litigation-focuses-emerging-issues-and-underserved-vulnerable.

©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 10 9 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP 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), and it represents an example of strategic intersection (addressing both hiring and an emerging issue). 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 and/or their first 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 and societal movements. Thus, this strategic priority is something of a “wild card.” 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 (LGBTQI+) 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 LGBTQI+ discrimination recognized as a prohibited form of discrimination under Title VII. That issue was 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. We have reported on the impact 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 current 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, the EEOC has dropped two priorities that appeared in this section of previous SEPs. These include protecting LGBTQI+ 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 the agency’s view 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 employers13 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. Earlier 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 policies, vaccination-related enforcement is not referenced in the SEP. Nor has it been a focus of agency litigation, with only a handful of actions pursued across the country since the pandemic. The final topic under this priority is “technology-related employment discrimination.” Here, the EEOC is interested in particular in employment decisions based on algorithmic decision-making; as well as automated recruitment, selection, production, and performance management tools. Advancing Equal Pay for All Workers. The fourth strategic priority is advancing enforcement of pay discrimination laws, including the Equal Pay Act and Title VII. We cover the key focus areas relative to this strategic priority in Part II(B). 13 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.

©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 12 11 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP In the past, the EEOC’s primary focus has been combating discrimination in pay based on sex. The FY 2024-2028 SEP revises this priority to make more clear that it intends to focus on pay discrimination based on any protected category. The SEP departs from prior versions in two other notable ways. First, it includes a statement indicating that the EEOC will not depend on charges from members of the public, but will use its authority to initiate directed investigations and Commissioner’s charges in order to facilitate enforcement. Second, the EEOC states its intent to challenge practices that it perceives may impede equal pay, or contribute to pay disparities, including secrecy policies, discouraging or prohibiting workers from sharing pay information, and “reliance on past salary history or applicants’ salary expectations to set pay.” The partnership between the EEOC and the Department of Labor that was announced in 2023, provides the agency an additional source for information that could fuel investigations in this area. We cover the Memorandum of Understanding setting forth this partnership in Part II(A)(3). Preserving Access to the Legal System. The fifth strategic priority is preserving access to the legal system, and it is largely unchanged from the prior version on this topic. The focus within this priority is on policies or practices that discourage or prohibit individuals from exercising their rights, including any policies that deter or prohibit filing charges with the EEOC or cooperating freely in EEOC investigations, as well as, according to the EEOC, “overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements,” failure to maintain applicant and employee data, and retaliatory practices that dissuade employees from exercising their rights. This objective has historically been reflected in the EEOC’s aggressive assertion of retaliation claims against employers allegedly obstructing employees’ efforts to participate in EEOC proceedings or otherwise oppose discrimination. The EEOC’s Enforcement Guidance on Retaliation states that retaliation occurs when an employer takes a materially adverse action because an individual has engaged, or may engage, in protected activity that is in furtherance of Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act, or Title II of the Genetic Information Nondiscrimination Act. Retaliation claims premised on EEO-related activity are comprised of three elements: (1) protected activity through “participation” in an EEO process or “opposition” to discrimination; (2) materially adverse action taken by the employer; and (3) the requisite level of causal connection between the protected activity and the materially adverse action. Of the 96 cases that were filed by the EEOC in FY 2024, 38 cases – or roughly 40% – involved retaliation allegations, signaling the EEOC’s continued interest in pursuing such claims and in turn, the interests of employees’ ability to pursue their rights under the anti-discrimination laws. Preventing and Remedying Systemic Harassment. The sixth strategic priority is preventing and remedying systemic harassment, both in-person and online. This priority is directed at harassment, including sexual harassment and harassment based on sex, race, disability, age, national origin, religion, and color. This strategic priority will continue to focus on systemic cases. The EEOC harassment as an ongoing and serious issue in the U.S. workplace. The EEOC has had ample opportunity to shape the law of sexual harassment through its litigation activities. Those cases often hinge on two issues: whether the alleged actions rise to the level of unlawful harassment, and whether an employer can be held liable for harassment perpetrated by employees. In FY 2024, there was a total of 20 cases involving harassment claims and 19 of those cases alleged sexual harassment. Additional information on this strategic priority and related case filings appears in Part II(D). Of note, the FY 2024-2028 SEP now expressly calls out harassment based on pregnancy, gender identity, and sexual orientation. The EEOC has also articulated more detailed support for employer training, including focusing on promoting comprehensive anti-harassment programs and practices and providing education, technical assistance, and policy guidance. Continued Reliance on Systemic Investigations and Litigation to Advance Strategic Goals. In the FY 2024-2028 SEP, the “Commission once again reaffirms its commitment to the agency’s systemic program.” The EEOC looks to its SEP priorities to decide what types of systemic investigations and cases to pursue. Indeed, the SEP priority areas are “given precedence over other cases to maximize the EEOC’s strategic impact.” While the Commission saw a decrease in litigation activity in FY 2024, the recent departure of one of the EEOC’s two Republican Commissioners (Keith Sonderling) has solidified a Democratic majority for the near future. The Commission also requested a budget increase of over $33 million for FY 2025, which if approved would allow the EEOC to enhance its litigation resources. As a likely result, employers can expect increased case filings with respect to each of the above-referenced priorities. 3 EEOC and Wage Hour Division Memorandum of Understanding On September 13, 2023, the EEOC and the Department of Labor Wage Hour Division (WHD) entered into a Memorandum of Understanding (MOU) enabling information sharing, joint investigations, training, and outreach.14 The MOU empowers the agencies’ field staff to coordinate efforts on both individual matters and larger investigations.15 The MOU’s information-sharing and other contemplated coordinated activity provisions cover a broad range of activities, touching on all aspects of EEOC and WHD jurisdiction. For example, the MOU explicitly describes that each agency will make complaint referrals to the other, that the two will share complaint or investigative files, EEO-1 reports and FLSA records, and “statistical analyses or summaries,” and that the agencies “will explore ways to efficiently facilitate” the data sharing. Information sharing under the MOU is not limited to just top-level agency officials in Washington, DC; leadership from each agency’s District (or Regional) offices may request information without the need to first obtain approval from HQ in Washington, DC. Importantly, the EEOC District Directors and Regional Attorneys may also designate other EEOC employees to make the request. This means that front-line EEOC staff involved in enforcement and litigation can quickly assess a wide range of information held by WHD. It is also noteworthy that the MOU allows any EEOC Commissioner to directly request information from WHD, without first channeling the request through EEOC career staff. This is significant because it enables EEOC Commissioners from different political parties than the Chair to obtain information directly from WHD. Significantly, the MOU specifically contemplates that the EEOC can share employer EEO-1 reports with the WHD. This is notable because Title VII prohibits the EEOC from disclosing EEO report data to the public, but the MOU does not bind the WHD in the same way. Instead, the WHD agrees to “observe” Title VII’s confidentiality requirements. Employers can continue to expect the MOU to result in amplified information sharing between the EEOC and WHD when it comes to individual charges and investigations. (The MOU contains a high-level framework for coordinated investigations involving the same employer.) The potential for data sharing to fuel broader systemic investigations should remain at the forefront of employers’ minds. The ability to gather additional data through this partnership with the WHD adds a powerful tool to the EEOC’s investigative powers. 14 U.S. Equal Employment Opportunity Commission Memorandum of Understanding Between the U.S. Department of Labor, Wage and Hour Division and the U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/memorandum-understanding-between-us-department-labor-wageand-hour-division-and-us-equal-employment. 15 See Rachel See, Christopher DeGroff, and Andrew Scroggins, EEOC and DOL Join Forces – What the Alliance Means for Employers, Workplace Class Action Blog (Sept. 18, 2023), https://www.workplaceclassaction.com/2023/09/eeoc-and-dol-join-forces-what-the-alliance-means-for-employers/.

RkJQdWJsaXNoZXIy OTkwMTQ4