January 13, 2023
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The U.S. Equal Employment Opportunity Commission (“EEOC”) launched a draft strategic enforcement plan for 2023 by means of 2027 (the “SEP”), which outlines its areas of precedence and enforcement objectives.[1]Within these priorities, the SEP calls out a variety of rising subjects together with synthetic intelligence (“AI”), the lately enacted Pregnant Workers Fairness Act of 2022 (“PWFA”), and lingering points regarding the COVID-19 pandemic. The draft is open for a remark interval till February 9, 2023 to assemble additional enter from stakeholders.
10 Key Takeaways for Employers
Artificial Intelligence (AI): The EEOC plans to deal with the use of AI instruments in recruitment, screening, hiring, promotion, and different employment selections. Since launching its initiative on algorithmic equity in October 2021, the EEOC has been rising its deal with AI. In May 2022, for instance, the EEOC issued its first technical steering on AI and filed its first enforcement motion alleging algorithmic discrimination.[2] The EEOC additionally introduced a public listening to scheduled for January 31, 2023 concerning the use of automated programs and AI in employment selections.[3] The federal authorities just isn’t the solely regulator on this area. New York City, for instance, handed a regulation that requires employers utilizing AI instruments to carry out a bias audit and fulfill sure posting necessities.[4] Employers can anticipate extra circumstances to be introduced by the EEOC along with ongoing regulation at the state and native ranges.
Pay Equity: The EEOC has signaled that it intends to make use of pay knowledge to determine employers for pay fairness circumstances, utilizing directed investigations and Commissioner prices. In addition, the SEP means that the EEOC will problem the use of wage historical past and requests for desired wage when setting pay. This follows on the heels of many native and state pay transparency legal guidelines, together with in New York City, California, and Colorado, which require employers to submit wage ranges in job commercials and goal to allow staff to ask about and share their pay with coworkers.[5]
Pregnancy Discrimination: The EEOC plans aggressive enforcement of the newly-enacted PWFA, which requires employers to make affordable lodging for pregnancy-related medical circumstances.[6] The PWFA additionally particularly prohibits employers from requiring pregnant staff to take paid or unpaid go away if one other affordable lodging might be supplied. Notably, the PWFA explains that the EEOC will difficulty rules, which is able to embrace “examples of affordable lodging addressing recognized limitations associated to the being pregnant, childbirth, or associated medical circumstances,” by December 23, 2023.
Current Events: The EEOC will goal to deal with the discrimination based mostly on race, faith, nationwide origin and gender influenced by or arising as backlash in response to native, nationwide, or international occasions.
Settlement, Confidentiality, Non-Disparagement, and Arbitration Agreements: The EEOC plans to focus on releases, confidentiality agreements, and arbitration agreements that it believes improperly limit entry to the authorized system. This is a part of a broader development at the state and native stage, in addition to with different federal companies like the National Labor Relations Board (“NLRB”), Securities Exchange Commission (“SEC”), and the Federal Trade Commission (“FTC”).[7] Additionally, the Speak Out Act, which prohibits the enforcement of pre-dispute non-disclosure and non-disparagement clauses in disputes regarding claims of sexual assault or sexual harassment, was signed into regulation simply final month on December 7, 2022.[8] Although the EEOC’s authority on this space is questionable (and it misplaced a previous problem concerning the use of severance agreements[9]), the EEOC will seemingly proceed to deliver consideration to most of these agreements.
Targeted Industries: The SEP identifies the purported lack of variety in sure industries, similar to building and “excessive tech” (with none cited proof), as areas of specific concern. Indeed, EEOC Chair Burrows has beforehand spearheaded a listening to to look at purported discrimination in the building sector with a specific emphasis on ladies and folks of coloration.[10] The EEOC has already begun focusing on these industries in 2022 and employers can anticipate the EEOC to proceed bringing enforcement actions on this area.
Vulnerable Populations: The EEOC defines weak populations who it believes can not simply acquire aid on their very own behalf to incorporate immigrants, people with arrest or conviction information, LGBTQI+ people, older staff, low-wage staff, Native Americans, and people with restricted literacy or English proficiency. This just isn’t a brand new space of focus, as the EEOC has been centered on increasing entry to jobs for staff from underrepresented communities by means of its Hiring Initiative to Reimagine Equity (“HIRE”) launched in January 2022.[11]
Recruitment and Hiring: The EEOC will place particular emphasis on recruitment and hiring, aiming to get rid of obstacles arising from purportedly exclusionary job commercials or restrictive or inaccessible utility programs. This focus is prone to dovetail with the use of rising applied sciences similar to AI and machine studying.
Systemic Harassment: The EEOC seemingly will look to deliver systemic harassment circumstances on all protected bases as one in every of its “key material priorities.” The SEP underscores that the EEOC is set to “fight this persistent drawback,” as over 34 % of the prices it obtained between 2017 and 2021 included an allegation of harassment.
COVID Again: The EEOC says that whereas it hopes discrimination instantly related with COVID-19 will decline as the nation recovers from the pandemic, it’s going to preserve its deal with COVID-19-related employment discrimination, together with circumstances regarding vaccine lodging, medical inquiries, and pandemic-related stereotyping.
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[1] Draft Strategic Enforcement Plan (Jan. 10, 2023), https://www.federalregister.gov/documents/2023/01/10/2023-00283/draft-strategic-enforcement-plan.
[2] For extra info, please see Gibson Dunn’s Client Alert, Keeping Up with the EEOC: Artificial Intelligence Guidance and Enforcement Action.
[3] EEOC, Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier, https://www.eeoc.gov/next-commission-meeting.
[4] The regulation’s enforcement has been postponed till April 15, 2023 (from January 1, 2023) as the City’s Department of Consumer Worker Protection will host a second public listening to on January 23, 2023 concerning the proposed guidelines geared toward clarifying the many ambiguities in the regulation. For extra info, please see Gibson Dunn’s Client Alerts, New York City Proposes Rules to Clarify Upcoming Artificial Intelligence Law for Employers, New York City Enacts Law Restricting Use of Artificial Intelligence in Employment Decisions.
[5] For extra info, please see Gibson Dunn’s Client Alerts, New York City Enacts Pay Transparency Law Requiring Salary Ranges in Job Postings, California Enacts Pay Transparency and Disclosure Requirements Effective January 1, 2023, Colorado’s Department of Labor and Employment Takes Hard Line on Remote Jobs that Exclude Colorado Applicants to Escape Challenging Aspects of the Equal Pay for Equal Work Act’s Posting Requirements.
[6] For extra info, please see Gibson Dunn’s Client Alert, Complying With The Pregnant Workers Fairness Act: Considerations For Employers (Forthcoming).
[7] See, e.g., Non-Compete Clause Rulemaking, Fed. Trade Comm’n (Jan. 5, 2023). For extra info, please see Gibson Dunn’s Client Alert, FTC Proposes Rule to Ban Non-Compete Clauses.
[8] For extra info, please see Gibson Dunn’s Client Alert, Biden Signs “Speak Out Act” Limiting the Enforceability of Non-Disclosure and Non-Disparagement Clauses in Sexual Harassment Cases.
[9] EEOC v. CVS Pharmacy, Inc., 809 F.3d 335, 343 (seventh Cir. 2015) (affirming dismissal of EEOC’s declare that CVS’ allegedly complicated severance agreements violated Title VII by main former staff to imagine they have been prohibited from submitting prices with the EEOC). The Seventh Circuit underscored that the EEOC’s authority beneath Title VII “doesn’t create a broad enforcement energy for the EEOC to pursue non-discriminatory employment practices that it dislikes.” Id. at 341.
[10] EEOC, EEOC Shines Spotlight on Discrimination and (*10*) in Construction (May 17, 2022), https://www.eeoc.gov/newsroom/eeoc-shines-spotlight-discrimination-and-opportunities-construction.
[11] EEOC, Hiring Initiative to Reimagine Equity (HIRE) Fact Sheet, https://www.eeoc.gov/hiring-initiative-reimagine-equity-hire-fact-sheet.
The following Gibson Dunn attorneys assisted in getting ready this shopper replace: Jason Schwartz, Katherine Smith, Harris Mufson, Molly Senger, Naima Farrell, and Emily Maxim Lamm.
Gibson Dunn’s legal professionals can be found to help in addressing any questions you might have concerning these developments. To be taught extra about these points, please contact the Gibson Dunn lawyer with whom you normally work, any member of the agency’s Labor and Employment follow group, or Jason Schwartz and Katherine Smith.
Jason C. Schwartz – Co-Chair, Labor & Employment Group, Washington, D.C.(+1 202-955-8242, [email protected])
Katherine V.A. Smith – Co-Chair, Labor & Employment Group, Los Angeles(+1 213-229-7107, [email protected])
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