©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 27 PART II: EEOC’s Strategic Enforcement Priorities According 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.” As in years past, the SEP establishes the EEOC’s six substantive area priorities. Part II addresses each of these priorities. 1 Eliminating Barriers In Recruitment and Hiring 4Ensuring Equal Pay Protections For All Workers 2Protecting Vulnerable Workers 5Preserving Access to the Legal System 3Addressing Selected Emerging and Developing Issues 6Preventing Systemic Harassment A The EEOC’s Strategic Enforcement Plan 1 Background Despite the significant changes in leadership that have occurred over the past few years, the EEOC continues to operate under its Strategic Enforcement Plan (“SEP”) for FY 2017-2021, established in October 2016.18 The term for the last SEP expired at the end of the FY 2021, but it remains in effect until modified or withdrawn. On January 10, 2023, the EEOC published for comment a proposed SEP for FY 2023-2027. Though not yet finalized, the proposal expands on the priorities that the EEOC has focused on in recent years, and adds some new areas of focus that can be expected to generate an increase in enforcement activity with the anticipated Democratic majority soon to be in place. 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.” 19 The Commission’s six major enforcement priorities have remained consistent across both 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.20 According 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.” 21 Additionally, the 2017-2021 SEP recognized the importance of “systemic” cases to its 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 18 U.S. Equal Employment Opportunity Commission, Press Release: EEOC Updates Strategic Enforcement Plan (Oct. 17, 2016), www.eeoc.gov/eeoc/ newsroom/release/10-17-16.cfm. To date, there has been no suggestion that the SEP will change in 2022. 19 U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017-2021, www.eeoc.gov/eeoc/plan/sep-2017.cfm. 20 See Gerald L. Maatman, Jr., Christopher J. DeGroff, Matthew J. Gagnon, and Ala Salameh, What A Long Strange Year It’s Been …The EEOC’s Fiscal Year Comes To An Uncharacteristically Quiet Close, Workplace Class Action Blog (Sept. 30, 2019), www.workplaceclassaction.com/2019/09/what-along-strange-year-its-been-the-eeocs-fiscal-year-comes-to-an-uncharacteristically-quiet-close/. 21 U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017-2021, www.eeoc.gov/eeoc/plan/sep-2017.cfm.