EEOC-Initiated Litigation - 2023 Edition

©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 29 to particular populations, recruit workers, or aid in hiring decisions. 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 also in this section called out a “lack of diversity” in certain industries, naming construction and high tech in particular, and stated its intent to monitor those benefiting from substantial federal investment. Protecting Vulnerable Workers. The second strategic enforcement priority is protecting vulnerable workers. The EEOC’s focus within this area is to combat policies and practices directed “against vulnerable workers,” including immigrant and migrant workers, as well as persons perceived to be members of these groups, and against members of underserved communities.” This year there was a focus on protecting individuals who practice religion. This can be contributed to the shift in the EEOC’s political makeup and the aftermath of the R.G. and R.H. Funeral Home v. EEOC/Bostock v. Clayton County decision. Other considerations include the implications of the COVID-19 pandemic and employer restrictions relative to preventing the spread of the virus, such as vaccine mandates and mask mandates. Subsection B provides an in-depth overview of this strategic priority and the new developments that took place this past fiscal year. 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 proposed FY 2023-2027 SEP adds substantially to this priority as well. In a change from prior versions of the SEP, the EEOC has called out nine different categories of vulnerable workers that it aims to safeguard: • immigrant and migrant workers; • individuals employed in low wage jobs, particularly teen-aged workers employed in such jobs; • individuals with arrest or conviction records; • LGBTQI+ individuals; • Native Americans/ Alaska Natives; • older workers; • people with developmental or intellectual disabilities; • persons with limited literacy or English proficiency; and • temporary workers. 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 is addressing 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. As a government agency, the EEOC is responsible for monitoring trends and developments in the law, workplace practices, and labor force demographics. 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 pregnancyrelated limitation sunder the Americans with Disabilities Amendments Act and Pregnancy Discrimination Act; (3) protecting lesbian, gay, bisexual, and transgender (LGBT) 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 over the past few years as its campaign to have LGBTQ discrimination recognized as a prohibited form of discrimination under Title VII. That issue was finally 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. Last year, we reported on this ruling and the theory