EEOC-Initiated Litigation - 2024 Edition

2024 Edition EEOC-Initiated Litigation


©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | i Dear Clients and Friends, Seyfarth Shaw is once again pleased to provide you with the latest edition of our annual analysis of trends and developments in Equal Employment Opportunity Commission litigation, EEOC-Initiated Litigation: 2024 Edition. This desk reference compiles, analyzes, and categorizes the major case filings and decisions involving the EEOC in 2023 and recaps the major policy and political changes we observed in the past year. Our goal is to guide our readers through all aspects of EEOC-initiated litigation, and to empower corporate counsel, human resources professionals, and operations teams to make sound and informed legal and business decisions. We hope that you find this report useful. And there is so much to explore: 2023 was a whirlwind of change and activity for the agency. We saw the balance of power shift to a Democratic majority with the confirmation of a new Commissioner—a development that has already translated to significant change within the agency and will impact the EEOC for years to come. A new General Counsel also took her seat at the EEOC table; a role that has historically been impactful in shaping EEOC’s agenda and strategy. The EEOC developed a new five-year Strategic Enforcement Plan in 2023, describing its substantive goals through 2028. The EEOC also published its similarly-named but distinct Strategic Plan, outlining just how the agency intends to tackle its substantive goals. Each of these developments, and what those developments mean for employers, will be discussed in detail herein. Part I of this reference introduces the key players in the EEOC, and how their unique views on employment and societal issues will shape real-world application of EEO statutes. Part II is an in-depth review of the EEOC’s evolving strategic priorities. This includes a fascinating overview of the emerging intersection between Artificial Intelligence issues and the EEOC’s agenda, equal pay protections and how the agency plans to address historical pay disparities, a new look at preventing harassment in the workplace, and the EEOC’s plans to double-down on large scale litigation, among a host of other topics. Back by popular demand, Part III includes a detailed profile of each EEOC District. Practitioners who work with and litigate against the EEOC quickly appreciate that each District has a unique personality and often differing substantive focus areas. It is all about location, location, location. Part IV paints the EEOC by the numbers: an empirical analysis of how the EEOC actually targeted employment issues in 2023, and how those trends will translate to activity in 2024. Part V is a deeper dive into how the EEOC has addressed particular industries, identifying which sectors tend to land in the EEOC’s crosshairs most often, why, and for which issues. Part VI is a new section of our annual publication, exploring the various ways EEOC actions are resolved, from confidential conciliation to Court-ordered Consent Decrees. Finally, Part VII provides related guidance concerning how the EEOC leverages the media at various stages in a case. A special thanks to the team of lawyers and professionals who made this publication possible with tireless efforts throughout the year. This book is meant to be the start of a conversation, and we are standing by to address any further questions or issues our readers wish to share. Andrew L. Scroggins (Editor) Christopher J. DeGroff (Editor)

ii | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP AUTHORS A particular acknowledgment of all of the tireless efforts of Practice Development Manager Amy Abate in developing this resource. David J. Rowland Partner Chicago (312) 460-5817 Linda C. Schoonmaker Partner Houston (713) 860-0083 Nicholas A. Gillard-Byers Associate Seattle (206) 946-4997 Adam J. Rongo Associate Chicago (312) 460-5959 Samantha L. Brooks Associate Washington, DC (202) 828-3560 Rachel V. See Senior Counsel Washington, DC (202) 772-9731 Alexandra R. Hassell Staff Attorney Boston (617) 946-8347 Taylor Iaculla Associate Chicago (312) 460-5796 Elizabeth L. Humphrey Associate Houston (713) 238-1809 Michael D. Jacobsen Partner Chicago (312) 460-5232 Matthew J. Gagnon Partner Chicago (312) 460-5237 Christopher W. Kelleher Associate Boston (617) 946-4811 Yoon-Woo Nam Associate Sacramento (916) 498-7023 James P. Nasiri Associate Chicago (312) 460-5976 Clara L. Rademacher Senior Fellow San Francisco (415) 732-1126 Andrew L. Scroggins Partner Chicago, Co-Editor (312) 460-5275 Christopher J. DeGroff Partner and Complex Discrimination Litigation Practice Group Co-Chair Chicago, Co-Editor (312) 460-5982

TABLE OF CONTENTS PART I: Agency Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Equal Employment Opportunity Commission Composition and Background . . . . . .1 B. EEOCStaffing.....................................2 C. EEOCProfiles.....................................4 PART II: EEOC’s Enforcement Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. EEOC’sFY2023CornerstoneDocuments . . . . . . . . . . . . . . . . . . . . . . 6 1. Background................................... 6 2. Particular FY 2023 Strategic Enforcement Priorities . . . . . . . . . . . . . . . 7 3. EEOC and Department of Labor Memorandum of Understanding . . . . . . . . 11 B. EEOCFocusonEqualPayProtections. . . . . . . . . . . . . . . . . . . . . . . . .12 C. Preventing Discrimination In Recruiting and Hiring . . . . . . . . . . . . . . . . . . 16 1. Artificial Intelligence and Technology in Recruiting and Hiring . . . . . . . . . 16 2. Other Technology in Hiring and the Path Ahead on AI . . . . . . . . . . . . . . 17 3. JobAdvertisements.............................. 18 4. Job Segregation or Steering Based on Protected Characteristics . . . . . . . 18 5. Focus Area: Hearing Impairment Issues In Recruiting and Hiring . . . . . . . . 19 6. Likely Focus on Vision Impairments in FY 2024 . . . . . . . . . . . . . . . . . 19 7. StaffingCompanyIssues............................20 8. Focus Area: Underrepresentation in Particular Industries . . . . . . . . . . . 20 D. Preventing Harassment In The Workplace . . . . . . . . . . . . . . . . . . . . . . .21 E. EEOC’s Emphasis on Combating Systemic Discrimination . . . . . . . . . . . . . . 23 PART III: District Office Profiles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 ©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2024 EDITION | iii

PART IV: By The Numbers: EEOC Data Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 A. Trends in EEOC Federal Court Filings In FY 2023 . . . . . . . . . . . . . . . . . . . 43 B. EEOCChargeDataAnalysis .............................46 PART V: Industry Focus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 A. HospitalityIndustryProfile..............................51 B. HealthcareIndustryProfile..............................52 C. ConstructionIndustryProfile. . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 D. RetailIndustryProfile.................................54 PART VI: EEOC Case Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 A. ResolutionThroughConciliation . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 B. ConsentDecrees...................................58 1. General Description of a Consent Decree . . . . . . . . . . . . . . . . . . . 58 2. Common Provisions of a Consent Decree . . . . . . . . . . . . . . . . . . . . 59 C. EEOCSettlementAgreements............................63 D. TrialJudgment....................................63 PARTVII: MediaandPublicityElementsofanEEOCCase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Seyfarth’s Complex Litigation Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 TABLE OF CONTENTS iv | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP

©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 1 PART I: Agency Composition A Equal Employment Opportunity Commission Composition and Background The EEOC spent most of FY 2023 with its political leadership deadlocked in a 2-2 tie between Democrats and Republicans, and without a Senate-confirmed General Counsel. However, the EEOC ended FY 2023 with a 3-2 Democratic majority firmly in place, with Commissioner Kalpana Kotagal joining the Commission on August 9, 2023. Moreover, at the start of FY 2024, the EEOC’s complement of political leadership reached full-strength with the Senate’s confirmation of General Counsel Karla Gilbride. The high level of EEOC litigation and enforcement activity we observed in FY 2023 is a strong reminder that most of the EEOC’s operations are not subject to political considerations, are conducted with tacit or explicit bipartisan approval from its political leadership, and are left squarely in the hands of the EEOC’s career leadership and front-line staff in the various District Offices throughout the country. For example, EEOC career staff oversaw the spike in merits cases filed by the EEOC in FY 2023. The Commission’s Senate-confirmed leadership team includes five Commission members, each nominated by the President and confirmed by the Senate. The President designates one of the Commissioners as the Chair, and another Commissioner can be designated as the Vice Chair. The EEOC’s General Counsel is also nominated by the President and confirmed by the Senate. Of the five Commissioners, no more than three may be members of the same political party, a statutory requirement notionally promoting bipartisanship that outlives administration changes. At the start of FY 2023, the EEOC’s political leadership consisted of: Charlotte A. Burrows (Chair, Democrat); Jocelyn Samuels (Vice Chair, Democrat); Janet Dhillon (Commissioner, Republican); Keith E. Sonderling (Commissioner, Republican); and Andrea R. Lucas (Commissioner, Republican). Commissioner Dhillon’s term expired in July 2022, but she was able to keep her seat because Biden’s nominee to fill the position, civil rights attorney Kalpana Kotagal, had not yet been confirmed by the Senate. While Commissioner Dhillon could have kept her seat until the end of 2022, she resigned in November 2022, leaving the Commission with a 2-2 partisan split until the Senate’s confirmation of Kalpana Kotagal (Commissioner, Democrat) on July 14, 2023. While the Commissioners must vote on certain official actions of the Commission, Title VII confers on the EEOC’s Chair the sole responsibility “for the administrative operations of the Commission”.1 Thus, even with a 2-2 political deadlock on the Commission for most of FY 2023, Chair Burrows could exercise her broad, sole discretion in driving multiple aspects of the EEOC’s agenda, including hiring non-Senate-confirmed political appointees, hiring members of the career Senior Executive Service, and evaluating and managing the EEOC’s cadre of Senior Executives. In other words, the Chair is directly responsible for hiring and evaluating the performance of the 15 District Directors across the country, as well as other Senior Executives in the agency. Moreover, the Chair’s responsibility for the “administrative operations” of the EEOC includes the ability, exercised through the EEOC’s Chief Operating Officer, to allocate the EEOC’s budget to its various programs and operational efforts. While the Commission as a whole must vote on certain appropriations, the Chair has broad authority in making adjustments—both large and small—to how the Commission spends its money. And while the Commission has statutory responsibility for deciding when to commence or intervene in litigation against private sector employers, Title VII confers upon the General Counsel responsibility “for the conduct of litigation” by the EEOC.2 The Commission has previously delegated some of its authority to the General Counsel, but the extent of the delegation has changed over time. The Commission’s delegation of litigation authority was last modified in the waning days of the Trump Administration, effective January 13, 2021, keeping more control with the Commission. In particular, this modification provided for an initial review by the members of the Commission of the Office of General Counsel’s litigation recommendations, 1 See Section 705(a). 2 See Section 705(b)(1).

2 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP and, upon the request of a majority of the Commissioners, the General Counsel would be required to submit the matter to the Commission for a vote. Even so, consistent with previous years, in FY 2023 the vast majority of litigation matters presented to the Commission for a vote were approved on a bipartisan basis. But once Commissioner Kalpana Kotagal joined the Commission on August 9, 2023, for the first time during the Biden Administration, Chair Burrows was able to take advantage of her 3-2 Democrat majority to bring politically contested matters before the Commission for a vote. One of Commissioner Kotagal’s first votes was contributing to a 3-2 Democratic majority vote approving the EEOC’s Strategic Plan. Other 3-2 votes on policy matters that occurred towards the end of FY 2023 included approval of the EEOC’s Strategic Enforcement Plan3 (see infra Part II), taking steps towards moving forward with issuing the Commission’s enforcement guidance on harassment in the workplace,4 submission of the Commission’s formal regulatory agenda, 5 approving a Memorandum of Understanding with the Department of Labor’s Wage Hour Division,6 issuing a Notice of Proposed Rulemaking implementing rules pursuant to the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020, and even a procurement matter relating to enhancing EEO-1 data collection framework. Consistent with the Commission’s usual practice of filing most of its district court litigation towards the end of the fiscal year in September, it was unsurprising to see the Commission voting on a relatively large number of litigation matters following Commissioner Kotagal joining the Commission in August 2023. While the vast majority of these votes were approved on a bipartisan basis, of the votes to initiate federal district court litigation that we know7 that Commissioner Kotagal participated in during FY 2023, 22% were approved with a 3-2 vote, with the three Democrats on the Commission voting to approve and the two Republicans voting to disapprove. And of the 11 votes regarding the EEOC’s filing of an amicus brief in FY 2023 that we know that Commissioner Kotagal participated in, 18% were approved with a 3-2 Democratic majority. In public comments, Chair Burrows has long expressed her desire to revisit the Commission’s litigation delegation processes. Granting greater leeway for the Office of General Counsel, including career staff, as well as Chair Burrows’ current ability and willingness to exercise her 3-2 Democratic majority, means that in 2024, we are more likely to see the Commission approve federal district court litigation and amicus filings that have more-partisan implications. B EEOC Staffing Chair Burrows and her staff are responsible for advocating before Congress for increases to the EEOC’s budget, and the Chair is also responsible for deciding exactly how the EEOC spends additional money appropriated by Congress. During the Biden Administration, the EEOC has received significant budget increases, and Chair Burrows has made significant investments in hiring front-line enforcement and litigation personnel. The EEOC’s headcount reached 2,173 full-time equivalent employees by FY 2023’s end, marking a 6.47% increase from its 2,041 FTEs at the end of FY 2022. In FY 2023, the EEOC made a whopping 493 hires, 338 (69%) of which were in front-line positions (that is, investigators, mediators, attorneys, and administrative 3 See Christopher Kelleher, Rachel See, Christopher DeGroff, and Andrew Scroggins, Behind the EEOC Curtain: EEOC’s New Strategic Enforcement Plan Reveals Agency Priorities, Workplace Class Action Blog (Sept. 21, 2023), 4 See Emily Miller and Rachel See, EEOC Releases Draft Enforcement Guidance on Workplace Harassment and Invites Comment, Seyfarth News and Insights (Oct. 10, 2023), 5 See Christopher DeGroff, James Nasiri, and Rachel See, EEOC Adopts 2022-2026 Strategic Plan With an Emphasis on Large-Scale Litigation, Improving Internal EEOC Processes, Workplace Class Action Blog (Aug. 23, 2023), 6 See Rachel See, Christopher DeGroff, and Andrew Scroggins, EEOC and DOL Join Forces – What the Alliance Means for Employers, Workplace Class Action Blog (Sept. 18, 2023), 7 Since November 2019, votes of the Commission have been published on its web page. However, there is a delay in the Commission voting on particular matters and the posting of the votes, and, from time to time, the posting of individual matters is further delayed to preserve confidentiality.

©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 3 staff who support those roles). This past year’s pace of hiring at the EEOC is an increase over the hiring that occurred in FY 2022, when the EEOC had 352 hires and 297 “front-line” positions filled. In other words, during FY 2023, the EEOC filled 14% more front-line positions than compared to the previous year. The following table and chart summarize what we know about the EEOC’s headcount from the EEOC’s recent Agency Financial Reports8: “Front Line” Positions Filled Total Hires Total EEOC Headcount at end of FY % Increase, Total Headcount FY 2020 260 1,939 -5.92% FY 2021 “ Predominately front-line” “ More than 450 authorized” 1,927 -0.62% FY 2022 297 352 (authorized) 2,041 5.92% FY 2023 338 493 (actual) 2,173 6.47% Since FY 2021, in its public reports, the EEOC has described its new hires as helping to “address critical service and morale issues by restoring staffing losses in key areas”. The EEOC’s headcount had dipped from a high of 2,202 at the end of FY 2016 during the Obama Administration, down to a low of 1,968 at the end of FY 2018 during the Trump administration. Based on the EEOC’s own projections, in FY 2024, its headcount will approach the high-watermark levels during the Obama administration. With this continued increased pace of hiring and increased prioritization of “front-line” hires, the EEOC continues to build its capacity to increase the pace of its investigation and litigation processes in FY 2024. 8 See U.S. Equal Employment Opportunity Commission, Fiscal Year 2023 Agency Financial Report (Nov. 15, 2023),; U.S. Equal Employment Opportunity Commission, EEOC Fiscal Year 2022 Agency Financial Report (Nov. 9, 2022),; U.S. Equal Employment Opportunity Commission, Fiscal Year 2021 Agency Financial Report (2021),; U.S. Equal Employment Opportunity Commission, Fiscal Year 2020 Agency Financial Report U.S. Equal Employment Opportunity Commission (2020),; U.S. Equal Employment Opportunity Commission, Fiscal Year 2019 Agency Financial Report U.S. Equal Employment Opportunity Commission (2019),; U.S. Equal Employment Opportunity Commission, Performance and Accountability Report Fiscal Year 2018 (2018), 1,800 1,850 1,900 1,950 2,000 2,050 2,100 2,150 2,200 2023 2022 2021 2020 2019 2018 EEOC Employees (FTE) at End of Fiscal Year

4 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP C. EEOC Profiles Charlotte A Burrows (Chair, Democrat) Charlotte Burrows has been a Commissioner at the EEOC since 2014, when she was nominated by President Obama. She has been designated by President Biden as the Chair of the Commission. On November 8, 2023, Burrows was confirmed by the Senate to serve for a third term, expiring in 2028. Prior to her appointment to the EEOC, she served as Associate Deputy Attorney General at the U.S. Department of Justice (DOJ), and on the staff of Senator Edward M. Kennedy on the Senate Judiciary Committee. Jocelyn Samuels (Vice Chair, Democrat) Jocelyn Samuels joined the EEOC as a Commissioner on October 14, 2020, and on July 14, 2021, was confirmed for a second term expiring in 2026. She has been designated by President Biden as the Commission’s Vice Chair. Immediately prior to joining the Commission, she led the Williams Institute, focusing on LGBTQ+ issues. During the Obama administration, she served in leadership positions at the U.S. Department of Health & Human Services and the U.S. Department of Justice. Kalpana Kotagal (Commissioner, Democrat) Kalpana Kotagal joined the EEOC on August 9, 2023, and her term expires in 2027. Before joining the Commission, she was in private practice, focusing on litigating worker-side civil rights issues. She is a co-author of the “Inclusion Rider”—a voluntary agreement between actors, filmmakers and studios aimed at advancing equal opportunity in the film industry both behind the camera and in front of it. Keith E Sonderling (Commissioner, Republican) Keith E. Sonderling joined the EEOC in 2020, for a term that expires in July 2024. Until January of 2021, he served as the Commission’s Vice-Chair. Before joining the EEOC, he served as the Acting and Deputy Administrator of the Wage and Hour Division at the U.S. Department of Labor. Before joining the Department of Labor in 2017, he was a management-side labor and employment lawyer in Florida. Commissioner Sonderling speaks and writes frequently on the benefits and potential harms of using artificial intelligence-based technology in the workplace.

©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 5 Andrea R Lucas (Commissioner, Republican) Andrea R. Lucas also joined the EEOC in 2020. Her term expires in July 2025. Prior to her appointment to the EEOC, she practiced management-side employment law at a large Washington, D.C. law firm. Recently, Commissioner Lucas has garnered media coverage for her cautionary advice to employers regarding their diversity, equity, and inclusion (DEI) programs. She is also known for emphasizing issues relating to religious discrimination, accommodation, and inclusion; accommodations for pregnancy, childbirth, and related medical conditions; and disability accommodation. Commissioner Lucas’ voting patterns demonstrate that among Republican Commissioners, she is a potential “swing” vote; in FY 2023, we know of 28 votes in which she voted to approve a matter with one of her fellow Republican Commissioners voting to disapprove. Of these swing votes in FY 2023, 15 were district court litigation authorization votes and eight were votes approving amicus participation. Karla Gilbride (General Counsel, Democrat) Karla Gilbride was nominated by President Biden as General Counsel of the EEOC, and was confirmed by the Senate on October 17, 2023 to a four-year term. Prior to Gilbride’s confirmation, the EEOC had been without a Senate-confirmed General Counsel since President Biden’s firing in March 2021 of General Counsel Sharon Gustafson, who had been nominated by President Trump. Gilbride previously litigated cases on behalf of workers and consumers. In May of 2022, she argued before the Supreme Court and obtained a 9-0 victory in a case involving the impact of delay on the enforcement of arbitration clauses, Morgan v. Sundance, Inc., 596 US _, 142 S.Ct. 1708 (2022).

6 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP PART II: EEOC’s Enforcement Priorities According to the EEOC, the purpose of its Strategic Enforcement Plan (SEP) is to focus and coordinate the agency’s work over multiple years “to have a sustained impact in advancing equal employment opportunity.” 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 4Advancing Equal Pay for All Workers 2Protecting Vulnerable Workers and Persons from Underserved Communities 5Preserving Access to the Legal System 3Addressing Selected Emerging and Developing Issues 6Preventing and Remedying Systemic Harassment A EEOC’s FY 2023 Cornerstone Documents 1 Background The EEOC released its new Strategic Enforcement Plan for FY 2024-2028 on September 21, 2023.9 The term for the last SEP expired at the end of FY 2021, but it remained in effect until formally modified or withdrawn. In January 2023, the EEOC posted a draft of the new SEP for public comment. Following a lengthy interval since public comments were accepted, the final SEP now identifies the agency’s enforcement priorities for the next five years. The SEP indicates that the agency intends to aggressively pursue its enforcement agenda through Commissioner Charges, directed investigations, and litigation involving systemic harassment and discrimination.10 Along with the SEP, the EEOC also outlines its enforcement strategies through its Strategic Plan.11 Despite the similarity in their titles, these plan documents serve two distinct purposes. The SEP lays out the Commission’s specific priorities by highlighting certain areas of law or groups of workers that it will aim to address over the next four years. On the other hand, the Strategic Plan describes how the EEOC will achieve its strategic mission, including executing on the priorities contained in the SEP. In the words of the EEOC, the Strategic Plan “establishes a framework for achieving the EEOC’s mission to ‘prevent and remedy unlawful employment discrimination and advance equal employment opportunity for all.’” 12 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 9 U.S. Equal Employment Opportunity Commission, Press Release: EEOC Releases Strategic Enforcement Plan (Sept. 21, 2023), https://www.eeoc. gov/newsroom/eeoc-releases-strategic-enforcement-plan. 10 See Christopher Kelleher, Rachel See, Christopher DeGroff, and Andrew Scroggins, Behind the EEOC Curtain: EEOC’s New Strategic Enforcement Plan Reveals Agency Priorities, Workplace Class Action Blog (Sept. 21, 2023), 11 See Christopher DeGroff, James Nasiri, and Rachel See, EEOC Adopts 2022-2026 Strategic Plan With an Emphasis on Large-Scale Litigation, Improving Internal EEOC Processes, Workplace Class Action Blog (Aug. 23, 2023), 12 U.S. Equal Employment Opportunity Commission Strategic Plan 2022-2026,

©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 7 discrimination in the workplace.” 13 The Commission’s six major enforcement priorities have remained relatively consistent across multiple 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.14 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.” 15 The 2024-2028 SEP reaffirmed the importance of “systemic” cases to the EEOC’s 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 Report that was formerly published in November of each year.16 Among other things, the annual Performance Accountability Report contained data regarding the number of systemic cases being handled by the EEOC. The EEOC now publishes an Agency Financial Report in November and a separate Annual Performance Report in February along with the EEOC’s Congressional Budget Justification. The Annual Performance Report describes the progress of the EEOC’s efforts to achieve its strategic goals and objectives. Employers will have to wait for that Report in February for updated data regarding the EEOC’s pursuit of systemic cases. In this year’s Agency Financial Report, the EEOC reported that the Commission filed 25 systemic discrimination lawsuits, nearly doubling the number of cases it filed in FY 2022, 2021, and 2020, when it filed only 13 each year.17 2. Particular FY 2023 Strategic Enforcement Priorities The EEOC focused on six different strategic enforcement priorities in FY 2023, including: (1) eliminating barriers in recruitment and hiring; (2) protecting vulnerable workers from underserved communities; (3) addressing selected emerging and developing issues; (4) advancing equal pay for all workers; (5) preserving access to the legal system; and (6) preventing and remedying systemic harassment. Eliminating Barriers In Recruitment and Hiring. The first strategic enforcement priority is eliminating barriers in recruitment and hiring. The EEOC’s focus within this priority is to address recruiting and hiring practices that “discriminate on any basis unlawful under the statutes EEOC enforces, including sex, race, national origin, color, religion, age, and disability.” The EEOC has spent a considerable amount of its enforcement budget litigating issues that it sees as barriers to recruitment and hiring. In recent years, there have been a number of judicial decisions involving the EEOC’s attempts to combat discrimination, including the use of pre-employment screening tests. The FY 2024-2028 SEP added far more detail about the types of hiring practices and policies that the EEOC intends to scrutinize. For example, prior SEPs described the EEOC’s intention to prevent steering members of protected groups into specific (often less desirable) jobs. The proposed SEP goes further to explain that the EEOC also will be examining whether employers are segregating workers in jobs, or by job duties, based on membership in a protected group. 13 U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017-2021, 14 See 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), 15 U.S. Equal Employment Opportunity Commission, Press Release: EEOC Approves Strategic Enforcement Plan, eeoc-approves-strategic-enforcement-plan. 16 U.S. Equal Employment Opportunity Commission, Fiscal Year 2019 Agency Financial Report, at 9, 17 U.S. Equal Employment Opportunity Commission, Fiscal Year 2023 Agency Financial Report,; U.S. Equal Employment Opportunity Commission, Fiscal Year 2022 Agency Financial Report,; U.S. Equal Employment Opportunity Commission, Fiscal Year 2021 Agency Financial Report, https://www.eeoc. gov/2021-annual-performance-report-apr; U.S. Equal Employment Opportunity Commission, Fiscal Year 2020 Agency Financial Report, https://

8 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP Building further on this, the SEP includes several new but related areas of focus. These include examining practices that may limit access to work opportunities, such as advertising jobs in a manner that excludes or discourages some protected groups from applying, or denying training, internships, or apprenticeships. The EEOC also intends to scrutinize whether employers are denying opportunities to move from temporary to permanent roles, including when permanent positions are available. Likewise, the EEOC modified its earlier focus on screening tools that might disproportionately impact workers based on their protected status, with a special emphasis in the new SEP on the use of technology, AI, and machine learning used in job advertisements, recruiting, and hiring decisions. We cover this in further detail in Part II(C). This aligns with the EEOC’s increased interest in how employers use technology to recruit and hire workers. Here, the new SEP emphasizes an employer’s use of all technology (not just “automated systems”) in hiring and recruitment as an area of strategic focus. The EEOC has, historically, focused on recruiting and hiring in part because private plaintiffs’ counsel have been unwilling to champion large scale hiring cases due to cost and challenges identifying potential victims. 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 has also called out “continued underrepresentation” of women and workers of color in certain industries, naming construction and manufacturing, high tech, STEM, and finance in particular, and indicated its intent to monitor those benefiting from substantial federal investment. Protecting Vulnerable Workers from Underserved Communities. The second strategic enforcement priority is protecting vulnerable workers. The EEOC’s focus within this area is to combat policies and practices that impact “particularly vulnerable workers,” including immigrant and migrant workers, and the agency has expanded the categories of workers categorized as “vulnerable and underserved.” 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 FY 2024-2028 SEP adds substantially to this priority as well. In a change from prior versions of the SEP, the EEOC has called out 11 different categories of vulnerable workers that it aims to safeguard: • immigrant and migrant workers; • individuals employed in low wage jobs, including teenage workers; • individuals with arrest or conviction records; • LGBTQI+ individuals; • Native Americans/Alaska Natives; • older workers; • people with developmental or intellectual disabilities; • people with mental health related disabilities; • persons with limited literacy or English proficiency; • temporary workers; and • survivors of gender-based violence. 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 addresses 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. Thus, this strategic priority is something of a “wild card.”

©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 9 As a government agency, the EEOC is responsible for monitoring trends and developments in the law, workplace practices, and labor force demographics. Not surprisingly, the emerging issues identified by the agency have evolved over time. For example, 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 pregnancy-related limitations under 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 in recent 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 the aftermath of the Bostock decision and in particular, the religious liberties implications that have come to light following that ruling. The FY 2024-2028 SEP has brought notable changes. The new SEP leaves just one priority largely unchanged from the prior SEP: qualification standards and inflexible policies or practices that discriminate against individuals with disabilities will remain an area of focus. On the other hand, EEOC has dropped two priorities that appeared in this section of previous SEPs. These include protecting LGBT people from discrimination, and clarifying the application of workplace civil rights protections in complex employment relationships and structures. However, those priorities have not fallen completely by the wayside. This is likely just an acknowledgment that these issues are no longer “emerging” areas, but rather have been fully embraced in the EEO universe. The SEP elaborates on statements from the earlier SEPs related to pregnancy discrimination to include protection for those affected by pregnancy, childbirth, and related medical conditions and disabilities, including under the Pregnant Workers Fairness Act. The PFWA requires covered employers18 to provide reasonable accommodations to employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” The EEOC immediately began accepting charges from claimants on June 27, 2023, the day the law went into effect. Prior versions of the SEP have discussed “backlash” discrimination, but the new SEP goes further. The EEOC has noted that discrimination against some groups can arise as a backlash in response to local, national, or global events. The EEOC identifies some groups in particular, including Jews; Muslims; racial or ethnic groups; and LGBTQI+ individuals, but also notes that the groups at issue, and the practices they are subjected to, can be expected to change during the time period covered by this SEP. Notably, the new SEP dials back the scope of the EEOC’s prior focus on COVID-19. Under the SEP, only “Long COVID” is now considered an area of strategic emphasis. This is important in part because, while the EEOC and its local counterparts have fielded thousands of charges of discrimination relating to employees’ religious and/or medical exemption requests from employers’ Covid-19 vaccination mandates, vaccination-related enforcement is not referenced in the SEP. 18 Under the PWFA, a covered employer includes private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.

10 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP The final topic under this priority is “technology-related employment discrimination.” Here, the EEOC is interested in particular in employment decisions based on algorithmic decision-making; as well as automated recruitment, selection, production, and performance management tools. Advancing Equal Pay for All Workers. The fourth strategic priority is advancing enforcement of pay discrimination laws, including the Equal Pay Act and Title VII. We cover the key focus areas relative to this strategic priority in Part II(B). In the past, the EEOC’s primary focus has been combating discrimination in pay based on sex. The FY 2024-2028 SEP revises this priority to make more clear that it intends to focus on pay discrimination based on any protected category. The SEP departs from prior versions in two other notable ways. First, it includes a statement indicating that the EEOC will not depend on charges from members of the public, but will use its authority to initiate directed investigations and Commissioner’s charges in order to facilitate enforcement. Second, the EEOC states its intent to challenge practices that it perceives may impede equal pay, or contribute to pay disparities, including secrecy policies, discouraging or prohibiting workers from sharing pay information, and “reliance on past salary history or applicants’ salary expectations to set pay.” The recently announced partnership between the EEOC and the Department of Labor provides the agency an additional source for information that could fuel investigations in this area. We cover the Memorandum of Understanding setting forth this partnership in Part II(A)(3). Preserving Access to the Legal System. The fifth strategic priority is preserving access to the legal system, and it is largely unchanged from the prior version on this topic. The focus within this priority is on policies or practices that discourage or prohibit individuals from exercising their rights, including any policies that deter or prohibit filing charges with the EEOC or cooperating freely in EEOC investigations, as well as, according to the EEOC, “overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements,” failure to maintain applicant and employee data, and retaliatory practices that dissuade employees from exercising their rights. This objective has historically been reflected in the EEOC’s aggressive assertion of retaliation claims against employers allegedly obstructing employees’ efforts to participate in EEOC proceedings or otherwise oppose discrimination. The EEOC’s Enforcement Guidance on Retaliation states that retaliation occurs when an employer takes a materially adverse action because an individual has engaged, or may engage, in protected activity that is in furtherance of Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act, or Title II of the Genetic Information Nondiscrimination Act. Retaliation claims premised on EEO-related activity are comprised of three elements: (1) protected activity through “participation” in an EEO process or “opposition” to discrimination; (2) materially adverse action taken by the employer; and (3) the requisite level of causal connection between the protected activity and the materially adverse action. Of the 144 cases that were filed by the EEOC in FY 2023, 45 cases—or roughly 31%—involved retaliation claims, signaling the EEOC’s continued interest in pursuing—such claims and in turn, the interests of employees’ ability to pursue their rights under the anti-discrimination laws. Preventing and Remedying Systemic Harassment. The sixth strategic priority is preventing and remedying systemic harassment, both in-person and online. This priority is directed at harassment, including sexual harassment and harassment based on sex, race, disability, age, national origin, religion, and color. This strategic priority will continue to focus on systemic cases. Harassment continues to be a serious issue in the workplace. The EEOC has had ample opportunity to shape the law of sexual harassment through its litigation activities. Those cases often hinge on two issues: whether the alleged actions rise to the level of unlawful harassment, and whether an employer can be held liable for harassment perpetrated by employees. In FY 2023, there was a total of 44 cases involving harassment claims and 27 of those cases alleged sexual harassment. Additional information on this strategic priority and related case filings appears in Part II(D).

©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 11 Of note, the FY 2024-2028 SEP now expressly calls out harassment based on pregnancy, gender identity, and sexual orientation. The EEOC has also articulated more detailed support for employer training, including focusing on promoting comprehensive anti-harassment programs and practices and providing education, technical assistance, and policy guidance. Continued Reliance on Systemic Investigations and Litigation to Advance Strategic Goals. In the FY 2024-2028 SEP, the “Commission once again reaffirms its commitment to the agency’s systemic program.” The EEOC looks to its SEP priorities to decide what types of systemic investigations and cases to pursue. Indeed, the SEP priority areas are “given precedence over other cases to maximize the EEOC’s strategic impact.” Now that the EEOC is under Democratic control, the Commission has made a roaring return to its prior levels of litigation activity after a few relatively quiet years. Employers can expect that the EEOC will conduct a more aggressive enforcement agenda with respect to each of the above-referenced priorities. 3 EEOC and Department of Labor Memorandum of Understanding On September 13, 2023, the EEOC and the Department of Labor Wage Hour Division (WHD) entered into a Memorandum of Understanding (MOU) enabling information sharing, joint investigations, training, and outreach.19 The MOU now empowers the agencies’ field staff to coordinate efforts on both individual matters and larger investigations.20 The MOU’s information-sharing and other contemplated coordinated activity provisions cover a broad range of activities, touching on all aspects of EEOC and WHD jurisdiction. For example, the MOU explicitly describes that each agency will make complaint referrals to the other, and that the two will share complaint or investigative files, EEO-1 reports and FLSA records, and “statistical analyses or summaries,” and that the agencies “will explore ways to efficiently facilitate” the data sharing. Information sharing under the MOU is not limited to just top-level agency officials in Washington, DC; leadership from each agency’s District (or Regional) offices may request information without the need to first obtain approval from HQ in Washington, DC. Importantly, the EEOC District Directors and Regional Attorneys also may designate other EEOC employees to make the request. This means that front-line EEOC staff involved in enforcement and litigation can quickly assess a wide range of information held by WHD. It is also noteworthy that the MOU allows any EEOC Commissioner to directly request information from WHD, without first channeling the request through EEOC career staff. This is significant because it enables EEOC Commissioners from different political parties than the Chair to obtain information directly from WHD. Significantly, the MOU specifically contemplates that the EEOC may share employer EEO-1 reports with the WHD. This is notable because Title VII prohibits the EEOC from disclosing EEO report data to the public, but the MOU does not bind the WHD in the same way. Instead, the WHD agrees to “observe” Title VII’s confidentiality requirements. Employers can expect the MOU to lead to more information sharing between the EEOC and WHD when it comes to individual charges and investigations. (The MOU contains a high-level framework for coordinated investigations involving the same employer.) The potential for data sharing to fuel broader systemic investigations also should catch the attention of all employers. The ability to gather additional data through this partnership with the WHD adds another powerful tool to the EEOC’s investigative powers. 19 U.S. Equal Employment Opportunity Commission Memorandum of Understanding Between the U.S. Department of Labor, Wage and Hour Division and the U.S. Equal Employment Opportunity Commission, 20 See Rachel See, Christopher DeGroff, and Andrew Scroggins, EEOC and DOL Join Forces – What the Alliance Means for Employers, Workplace Class Action Blog (Sept. 18, 2023),

12 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP B EEOC Focus on Equal Pay Protections The EEOC is the federal government’s most powerful agency for the enforcement of federal anti-discrimination laws in the workplace. Authorized by Congress to wield broad investigative and subpoena powers for the prevention and remediation of unlawful employment practices, the EEOC’s enforcement mechanisms cover a range of activities, from individual and systemic claims investigations, conciliation, litigation and monitoring compliance, to serving as an agent for effecting broader policy change in employment sectors throughout the country. Each iteration of the EEOC’s Strategic Enforcement Plan has included a focus on advancing equal pay for all workers.21 The number of EEOC lawsuits alleging equal pay violations has dropped significantly over the past few years, most likely due to the previous Republican-led EEOC leadership, for whom this was not a top priority. This has led to a decline in legal decisions relating to equal pay issues, at least those involving the EEOC as a party. Equal pay litigation, itself—apart from the EEOC’s involvement – continues apace. And the EEOC has been actively attempting to steer the results, even if not as a party plaintiff. For example, in September 2023, the EEOC filed an amicus brief in favor of reversal of the United States District Court for the Middle District of Alabama’s decision in Williams v. Alabama State University.22 In that case, a female Athletic Director of a university alleged she was underpaid compared to her male successor in the same position. Before the university hired her, the plaintiff had earned a Master’s Degree in Athletic Administration and worked for two other Division I schools. When plaintiff was hired in 2018, she was given a $135,000 salary with performance incentives. When she asked for a raise the following year, the university denied her request and gave her a one-time $5,000 signing bonus.23 Williams resigned in 2021, and the university posted the Athletic Director position again, modifying the education and experience requirements. On education, the posting required “a master’s degree, preferably in sports management or sports administration, an MBA or terminal degree.” On experience, the posting required “at least seven to ten years of experience in major leadership posts in sports administration and management.” 24 The university hired a male who had a Master’s Degree in Secondary Education and a PhD in Higher Education Administration. He had never been an athletic director before. But he requested and received a starting salary of $170,000 along with performance incentives.25 Nevertheless, the District Court granted the university’s motion for summary judgment on plaintiff’s EPA claim. The court held (1) that the university had met its burden on the affirmative defense because the evidence demonstrates that it could have legitimately relied on her successor’s higher degree and greater relevant experience to set his higher salary;26 and (2) that plaintiff had not proven pretext because she failed to produce evidence that directly establishes discrimination, or which would permit a jury to reasonably disbelieve the employer’s proffered reason.27 The matter was appealed to the Eleventh Circuit, where the EEOC filed an amicus brief urging its interpretation of the burden shifting framework under the EPA.28 According to the EEOC, the EPA’s framework is as follows: (1) the plaintiff must establish a prima facie case; (2) the defendant must then prove an affirmative defense that, in fact, caused the difference in pay in order to avoid liability. According to the EEOC, under the EPA, the burden never shifts back to the plaintiff to prove pretext. 29 21 See U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2024 - 2028, Strategic Enforcement Plan Fiscal Years 2024 - 2028 | U.S. Equal Employment Opportunity Commission ( 22 Williams v. Ala. State Univ., No. 2:22-cv-48-ECM, 2023 WL 4632386 (M.D. Ala. July 19, 2023). 23 Id. at *2. 24 Id. 25 Id. at *3. 26 Id. at *4. 27 Id. at *7. 28 See Br. of the EEOC as Amicus Curiae in Support of Appellant and in Favor of Reversal, Williams v. Ala. State Univ., No. 23-12692 (filed Sept. 29, 2023). 29 Id. at 10-13.