©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 32 31 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP That said, it is entirely fair to say that the EEOC’s iTutorGroup complaint and settlement, as well as the way the commission has characterized the lawsuit and settlement, squarely falls within the broader scope of the EEOC’s greater scrutiny of all sorts of technology in hiring, even technology that does not involve artificial intelligence. The EEOC’s commitment to enforcement in the area of AI and other technology in hiring serves as a strong reminder that employers should be prepared to defend their use of technology in hiring, whether or not it might fall into any particular legal definition of “artificial intelligence.” In response to EEOC charges alleging that the use of AI or other technology is discriminatory, employers should be prepared to explain to EEOC investigators what AI or other technology they have been using in hiring or sourcing processes, and produce evidence that their processes are free of unlawful disparate impact against protected groups. Also, if employers have not already had conversations with their AI vendors or in-house developers about the likelihood of scrutiny of these processes in enforcement actions or litigation, in certain circumstance it could be an opportune time to take a deeper look at how technology is being used in their own organization. 3. Job Advertisements The EEOC’s SEP accentuates the risks associated with unlawfully targeted job advertisements, or advertisements that otherwise deter people from specific protected groups from applying. The EEOC’s emphasis here includes job advertisements posted in traditional media that might contain discriminatory language, as well as issues involving algorithmic targeting of job advertisements. 4 Job Segregation or Steering Based on Protected Characteristics Job segregation and steering issues have been included in the SEP since 2017. Charges and litigation in this category could involve practices that do not necessarily focus on technology , such as steering women away from certain positions, channeling workers onto certain shifts, or assigning workers to certain positions based on a protected class. However, as with other hiring categories in the SEP, there is also a technology angle, with the EEOC expressing potential heightened interest in charges involving technology that applies – with or without AI – allegedly discriminatory steering or segregation, such as by suggesting jobs for which an applicant or employee is well-matched. In September 2024, the EEOC sued a regional restaurant chain, alleging that it had a policy or practice of intentionally failing to hire male applicants for front-of-house positions because of their sex.77 According to the EEOC’s complaint, the policy or practice impacted hiring and resulted in segregation by sex in 19 restaurant locations. The EEOC also resolved several complaints involving allegations of segregation. In April 2024, the EEOC announced that it had settled complaint that drivers were assigned different routes, given heavier dock work, and segregated based on race.78 In August 2024, the EEOC announced that it had settled a complaint that included allegations the employer had segregated jobs based on sex.79 In September 2024, the EEOC announced that it had reached a settlement to end litigation alleging that an employer had used multiple secret phrases and techniques when requesting temporary employees from a staffing agency, including requesting Spanish-speaking employees to fill roles that did not require such language skills, and segregated employees by race and generally provided Hispanic workers better pay, working conditions, and financial opportunities than Black workers.80 77 See U.S. Equal Employment Opportunity Commission, Kickback Jack’s Sued by EEOC for Failing to Hire Males for Front-of-House Positions (Sept. 25, 2024), https://www.eeoc.gov/newsroom/kickback-jacks-sued-eeoc-failing-hire-males-front-house-positions. 78 See U.S. Equal Employment Opportunity Commission, DHL to Pay $8.7 Million in EEOC Race Discrimination Lawsuit (Apr. 25, 2024), https://www. eeoc.gov/newsroom/dhl-pay-87-million-eeoc-race-discrimination-lawsuit. 79 See U.S. Equal Employment Opportunity Commission, Radiant Services to Pay $1.1 Million in EEOC Hiring Discrimination Lawsuit (Aug. 7, 2024), https://www.eeoc.gov/newsroom/radiant-services-pay-11-million-eeoc-hiring-discrimination-lawsuit. 80 See U.S. Equal Employment Opportunity Commission, Aaron Thomas Company to Pay $450,000 to Settle EEOC Race Discrimination Lawsuit (Sept. 27, 2024), https://www.eeoc.gov/newsroom/aaron-thomas-company-pay-450000-settle-eeoc-race-discrimination-lawsuit. 5. Focus Area: Underrepresentation in Particular Industries The final paragraph in the new SEP’s section on hiring maintains the 2017-2021 SEP’s emphasis on issues relating to the continued underrepresentation of women and workers of color in certain sectors: The continued underrepresentation of women and workers of color in certain industries and sectors (for example, construction and manufacturing, high tech, STEM, and finance, among others), are also areas of particular concern, especially in industries that benefit from substantial federal investment. The EEOC has alerted the construction industry that it is focused on who is receiving on-the-job training, pre-apprenticeship or apprenticeship programs, temp-to-hire positions, internships, or other job training or advancement opportunities. Relatedly, the EEOC is focused on whether employees performing temporary work are permitted to seek permanent positions as they are made available. In each of these instances, over- or underrepresentation of protected groups may prompt the EEOC to turn its investigative powers to try to identify the reasons why.81 On June 18, 2024, the EEOC issued its Promising Practices for Preventing Harassment in the Construction Industry.82 This guidance provides key recommendations that construction-industry leaders and employers should consider implementing to prevent and address harassment in the workplace, and avoid being the target of the EEOC’s enforcement efforts. The guidance emphasizes several core principles to prevent and address harassment in the construction industry, including a committed and engaged leadership, consistent and demonstrated accountability, strong and comprehensive anti-harassment policies, trusted and accessible complaint procedures, and regular, interactive training tailored to the appropriate audience. In support of these principles, the guidance makes several overarching recommendations to help construction-industry employers remain in compliance with federal laws, and off the EEOC’s enforcement radar. Technology companies – broadly defined – also remain on the EEOC’s radar. On September 11, 2024, the EEOC issued a report entitled High Tech, Low Inclusion: Diversity in the High Tech Workforce and Sector 2014-2022, which analyzes “demographic disparities for workers in 56 science, technology, engineering, and mathematics (STEM) occupations and the industries employing them.” 83 The report lists numerous findings that show, according to the EEOC, that the underrepresentation of Black, Hispanic, female, and older workers in the high-tech industry is due to “discriminatory barriers,” which the EEOC intends to address by proactively investigating charges of discrimination and pursuing litigation. The EEOC also plans to provide technical assistance and engage in extensive education and outreach efforts aimed at getting employers to comply with laws enforced by the EEOC. We should expect the EEOC to continue efforts toward analyzing the diversity of these sector-specific workforces, and developing enforcement and litigation targets addressing any perceived gaps. D Preventing Harassment In The Workplace The prevention of systemic workplace harassment has been one of the EEOC’s national enforcement priorities since 2013. In April 2024, the EEOC published its Enforcement Guidance on Harassment (“Enforcement Guidance”).84 The Enforcement Guidance was meant to replace several earlier EEOC guidance documents, aiming to define what constitutes harassment, examine when a basis for employer liability exists, and offer suggestions for preventative practices.85 According to the Enforcement Guidance, the EEOC will find harassing conduct to be unlawful if the conduct is based on an individual’s race, color, national origin, religion, age, 81 See Meghan A. Douris and Andrew Scroggins, The EEOC Targets Construction Industry For Heightened Enforcement, The Construction Seyt (Feb. 24, 2024), https://www.seyfarth.com/news-insights/the-eeoc-targets-construction-industry-for-heightened-enforcement.html. 82 See Christopher Kelleher and Andrew Scroggins, EEOC Issues Anti-Harassment Guidance to Construction-Industry Employers, The Construction Seyt (June 24, 2024), https://www.constructionseyt.com/2024/06/eeoc-issues-anti-harassment-guidance-to-construction-industry-employers/. 83 Christopher Kelleher, Andrew Scroggins and Christopher DeGroff, EEOC Puts High Tech Employers on High Alert Regarding Discrimination (Sept. 11, 2024), https://www.workplaceclassaction.com/2024/09/eeoc-puts-high-tech-employers-on-high-alert-regarding-discrimination/. 84 Office of Legal Counsel, U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Harassment in the Workplace, ( Apr. 29, 2024), https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace#_ftn215 85 See id.
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