33 | EEOC-INITIATED LITIGATION: 2026 EDITION ©2026 Seyfarth Shaw LLP civil rights law. It may also be wise to document AI usage internally to stave off accusations of intentional discrimination and monitor AI usage for disparate impact, which remains a litigation risk from the private plaintiffs’ bar. 3. Job Advertisements The EEOC’s SEP accentuates the risks associated with unlawfully targeted job advertisements, or advertisements that otherwise deter people from specific protected groups from applying. Key concerns include advertisements shown exclusively to certain age groups, genders, or racial demographics, and the use of platforms that filter or prioritize candidates based on protected traits. Employers are held accountable for discriminatory outcomes, even when utilizing third-party platforms or automated systems, with liability potentially arising from the use of biased algorithms or targeting tools. This focus includes both intentional exclusion and unintentional disparate impact. Although, the trend under the Trump Administration has been to move away from advancing a disparate impact theory. The EEOC’s emphasis in the SEP also includes job advertisements posted in traditional media that might contain discriminatory language, as well as issues involving algorithmic targeting of job advertisements. Additionally, there is a focus on restrictive application processes or systems that are inaccessible or more challenging for individuals with disabilities or other protected groups. 4. Job Segregation or Steering Based on Protected Characteristics Job segregation and steering issues have been a consistent focus in the SEP since 2017 and remain a priority in the 2024 – 2028 SEP. Charges and litigation in this category could involve practices such as steering women away from certain positions, channeling workers onto certain shifts, or assigning workers to certain positions based on a protected class. However, as with other hiring categories in the SEP, there is also a technology angle, with the EEOC expressing potential heightened interest in charges involving technology that applies—with or without AI—allegedly discriminatory steering or segregation, such as by suggesting jobs for which an applicant or employee is well-matched. In September 2024, the EEOC filed a lawsuit in federal court against Mile Hi Foods and its related companies, alleging sex, race, and national origin discrimination in hiring. The complaint claims that since at least 2015, Mile Hi Foods has discriminated against applicants who are female, Black, or of Afghan heritage. The EEOC is currently in litigation and seeks to identify class members who may have been subjected to unlawful discrimination in hiring.76 In September 2024, the EEOC sued a regional restaurant chain, alleging that it had a policy or practice of intentionally failing to hire male applicants for front-of-house positions because of their sex.77 According to the EEOC’s complaint, the policy or practice impacted hiring and resulted in segregation by sex in 19 restaurant locations. The EEOC also resolved several complaints involving allegations of segregation in 2024. In April 2024, the EEOC announced that it had settled a complaint that drivers were assigned different routes, given heavier dock work, and segregated based on race.78 In August 2024, the EEOC announced that it had settled a complaint that included allegations the employer had segregated jobs based on sex.79 In September 2024, the EEOC announced that it had reached a settlement to end litigation alleging that an employer had used multiple secret phrases and techniques when requesting temporary employees 76 See EEOC v. Mile Hi Foods Co., et al., Case No. 1:24-cv-02703-KAS (Sept. 30, 2024) 77 See U.S. Equal Employment Opportunity Commission, Kickback Jack’s Sued by EEOC for Failing to Hire Males for Front-of-House Positions (Sept. 25, 2024), https://www.eeoc.gov/newsroom/kickback-jacks-sued-eeoc-failing-hire-males-front-house-positions. 78 See U.S. Equal Employment Opportunity Commission, DHL to Pay $8.7 Million in EEOC Race Discrimination Lawsuit (Apr. 25, 2024), https://www.eeoc.gov/newsroom/dhl-pay-87-million-eeoc-race-discrimination-lawsuit. 79 See U.S. Equal Employment Opportunity Commission, Radiant Services to Pay $1.1 Million in EEOC Hiring Discrimination Lawsuit (Aug. 7, 2024), https://www.eeoc.gov/newsroom/radiant-services-pay-11-million-eeoc-hiring-discrimination-lawsuit.
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