©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/.
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