Are your ducks in a row? With Biden beefing up the EEOC, now is the time for smart businesses to review their current policies and procedures to ensure compliance

Kathleen D. Weron 

The Equal Employment Opportunity Commission (EEOC) was established in 1965 as part of the historic Civil Rights Act of 1964. Title VII of that act prohibits employment discrimination based on race, sex, color, religion and national origin. The act applies to private employers, labor unions and employment agencies. During the past 57 years, the EEOC’s jurisdiction has grown and now includes, in addition to Title VII, the Age Discrimination in Employment Act of 1967, the Pregnancy Discrimination Act of 1978, the Equal Pay Act of 1963, Titles I and V of the Americans with Disabilities Act of 1990 and Title II of the Genetic Information Nondiscrimination Act of 2008.

Over the decades, the EEOC’s priorities have remained the same — to prevent and remedy employment discrimination and advance equal opportunity in the workplace. Still, recent developments signal that the EEOC is shaping up to begin an aggressive increase in enforcement activity under the Biden administration. It is critical that employers take heed regarding the EEOC’s strategic priorities and enforcement agendas.

In November, the EEOC released the preliminary draft of its 2022-26 Strategic Plan. The Draft Strategic Plan establishes a framework for achieving the EEOC’s mission to “prevent and remedy unlawful discrimination and enforce civil rights in the workplace.” The Draft Strategic Plan also outlined the following strategic goals and objectives for the years ahead: 1. Combat and prevent employment discrimination through the strategic application of EEOC’s law enforcement authorities; 2. Prevent employment discrimination and advance equal employment opportunities through education and outreach; 3. Strive for organizational excellence through its people, practices and technology.

Earlier this year the EEOC reported that in FY 2021 it had higher recoveries through the administrative process; higher merit factor resolutions resulting in nearly one in five charges resolved favorably to workers; had begun rebuilding the agency’s litigation program, which would include filing more lawsuits; and had successfully handled more mediations — both in number and benefits to charging parties.

And the EEOC finished FY 2022 with a surge of filings, including filing more than 40 lawsuits against employers in September alone (down from the 59 lawsuits filed in September of FY 2021, but still a significant increase from 2020). Most of the recently filed EEOC lawsuits against employers assert claims for race and sex discrimination, sexual harassment against women and pay equity issues.

Additionally, the new administration indicated that it will increase the EEOC’s enforcement capacity. In 2020, the agency had 1,939 employees. Under Biden, the agency increased its size to 2,100 employees and expects to reach 2,300 employees by the end of 2022 as part of its self-described “rebuilding.”

Biden also released his 2023 budget, with a proposed a $464 million increase for the EEOC, which represents a 10.6 percent increase over the 2022 enacted level and, if approved, would be the largest budget ever. The EEOC reported that with the president’s budget and robust workforce planning, the EEOC plans to improve its capacity to advance the agency’s mission and vigorously enforce the laws entrusted to the EEOC, focusing on four broad areas: 1. Racial justice and combatting systemic discrimination on all protected bases, 2. Pay equity, 3. Addressing the civil rights impact of the COVID-19 pandemic and, 4. F0urther strengthening the agency.

With an expanding staff and a vastly increased proposed budget, now is the time for smart businesses to review their current policies and procedures to ensure workplace policies and training are comprehensive, up-to-date and compliant with federal law. Below is a list of recommended priorities for employers as we move into 2023:

• Review recruiting and hiring procedures to ensure that both are accessible to individuals with disabilities and are as objective as possible. Additionally, any pre-employment screening tools should be job-related and employers should review whether any tools, including artificial intelligence (AI), disparately exclude applicants. The EEOC announced in 2021 that it was launching an initiative to ensure that AI and other emerging tools used in hiring and other employment decisions comply with federal civil rights laws. According to the EEOC, these tools may mask and perpetuate bias or create new discriminatory barriers to jobs. Moreover, both disparate treatment and disparate impact arising from the use of algorithms and AI falls squarely with the EEOC’s stated priority to address systemic discrimination.

• Review and update employment policies prohibiting unlawful discrimination and harassment. If your company has not revisited its employee handbook recently, or if your company does not have a widely disseminated, comprehensive policy prohibiting harassment and retaliation, now is the time to take a critical look at your company’s policy and distribution channels. A comprehensive policy defines what constitutes harassment, including sexual harassment, and provides examples of conduct that will not be tolerated in the workplace. The policy should also provide multiple avenues to complain and outline the reporting process. The complaint route should not be limited to the employee’s immediate supervisor, since that person may be the harasser. The policy should also designate those in authority to whom complaints should be made with specific name, title and contact information. Indicate whether complaints to mid-level managers, not otherwise designated, will be insufficient to put the company on notice and encourage employees to report to designated personnel promptly. A comprehensive policy should provide assurance that the company will not retaliate or tolerate retaliation against anyone complaining or participating in an investigation of a complaint.

• Provide proactive training for all employees to educate them on workplace rights and, importantly, internal reporting procedures. Provide specific training for managers and supervisors on how to handle an employee complaint of unlawful discrimination, harassment or retaliation. Ensure that all managers understand their responsibility to address and prevent unlawful retaliation. Keep careful records of who attends each training session and the material that was presented. An employer may need to show that an individual received training regarding the complaint process and documentation of an employee’s attendance at a training seminar is critical in the event a harassment claim is asserted against the employer.

Take reports of discrimination, harassment and/or retaliation seriously and investigate all claims promptly, taking immediate remedial action when necessary.

• Be aware of the EEOC’s focus on racial justice and combatting systemic discrimination on all protected bases. Review policies and procedures that may have a disparate impact on a protected class (individuals who have a disability, for example) and confirm documentation and retention policies to assure that applicant and employee data is properly recorded, maintained, up-to-date and accessible.

Looking forward, employers should expect a more robust and aggressive EEOC. Taking the time now to review workplace policies, practices and institute employee training will ensure compliance and help avoid, or provide valuable defenses to, EEOC investigations and claims down the road.

Kathleen D. Weron is an employment law attorney with Ogletree Deakins in Salt Lake City. She regularly advises Utah businesses on employment compliance issues, drafts workplace policies and employee manuals and conducts comprehensive executive and employee training.