©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.
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