©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.
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