On March 13, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued its annual performance report for 2022. The EEOC is the federal agency charged with enforcing numerous federal employment laws, including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Equal Pay Act, among others. The annual report can provide helpful insights to employers on EEOC’s current priorities for complex and systemic litigation.
Many employers commonly encounter the EEOC when an applicant, employee, or former employee files a charge of discrimination with the agency. From there, most claimants will hire private counsel if they intend to proceed with a lawsuit. However, employers should also be aware of the authority the EEOC has to bring lawsuits in its own name on behalf of employees or applicants to allege claims involving patterns or practices of discrimination. The report makes clear that “tackling systemic discrimination” continues to be a top EEOC priority. The EEOC pursues this objective by conducting “systemic investigations” and filing “systemic suits” with the aim of changing employment practices, preventing future discrimination, and bringing employers into compliance with the laws the EEOC enforces.
The EEOC reports that in 2022 it resolved more than 300 systemic investigations and obtained more than $29.7 million from employers as a result of these investigations. The focus of last year’s investigations described in the report appear to be sex and disability discrimination issues, and areas where those two protected traits overlap, such as pregnancy accommodations.
In addition to investigations, the EEOC filed thirteen new systemic lawsuits in 2022. Among these new cases, eight of the thirteen involve allegations of sex discrimination, sexual harassment, or equal pay issues on the basis of sex, indicating a clear EEOC priority to target sex discrimination. A significant focus appears to be allegations involving sex stereotyping in hiring women for positions that are lighter or clerical in nature, while failing to hire or transfer women to higher-paying positions that are heavier-duty or traditionally performed by men. Of the other newly-filed systemic lawsuits, three involve claims of age discrimination, two involve disability discrimination, two involve race discrimination, and one involves religious discrimination.
One of the new systemic lawsuits filed by the EEOC deserves a special mention. In the Eastern District of New York, the EEOC filed EEOC v. iTutorGroup, Inc., a systemic case against a tutoring service provider alleging that the employer used software to automatically reject older job applicants. The aspects of this case involving use of technology are relatively novel. This indicates that the EEOC may be sharpening its focus on applicant-screening technologies in an environment where such technology is becoming more prevalent with the rise of better artificial intelligence. Employers using technology in hiring processes or thinking of doing so should pay close attention to how this case unfolds and should assess any current use for compliance with employment discrimination laws.
Proactive employers should maintain awareness of the types of policies and practices that the EEOC challenges as unlawful to avoid coming within the agency’s crosshairs.