KHVPF Insight
EEOC Developments
In recent months, the EEOC has outlined its broad strategic plans, its subject matter priorities, and issued new regulations on sexual harassment and related to pregnancy discrimination. This note outlines these developments.
Strategic Planning. In August 2023, the EEOC issued its Strategic Plan for Fiscal Years 2022-2026, outlining its strategic objectives through 2026. The Plan announced the EEOC’s intent to focus on identifying and investigating systemic discrimination—which the EEOC defines as “pattern or practice, policy and/or class cases where the discrimination has a broad impact on an industry, profession, company or geographic location.” Under this new priority, employers may see the EEOC investigate issues beyond the specific ones raised by a single Charging Party, and dive deeper into an employers’ operations and practices. In addition, the EEOC plans to improve access to intake services and increase the availability of appointments. The EEOC also announced plans to devise new outreach strategies to reach diverse populations and vulnerable communities and inform them of their rights under anti-discrimination laws.
In September 2023, the EEOC released its Strategic Enforcement Plan for Fiscal Years 2024-2028, setting forth its subject matter priorities. The EEOC will continue its focus on promoting prevention of discrimination, combatting pay discrimination, preventing and remedying systemic harassment, and retaliation. In addition, the EEOC’s ambitious plan contains new areas of emphasis, including discrimination against religious minorities (such as antisemitism and Islamophobia), racial or ethnic groups, and LGBTQ+ individuals; protecting workers affected by pregnancy, childbirth, or related medical conditions; discrimination related to long-term effects of COVID-19; and technology-related employment discrimination. It also will focus on the continued underrepresentation of women and workers of color in certain industries and sectors, such as construction and manufacturing, finance, and STEM fields. The EEOC will pay increased attention to employers’ use of technology in recruiting and making hiring and other employment decisions. And it will address overly broad waivers, releases, non-disclosure agreements, and non-disparagement agreements.
Proposed Regulations Regarding the Pregnant Workers Fairness Act. In August 2023, the EEOC issued a proposed rule to implement the PWFA. The PWFA requires covered employers to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would cause an undue hardship. The time for submitting comments closed in October, and we are awaiting the final rule which should be issued by December 29, 2023. The proposed rule sets forth the EEOC’s interpretation of terms in the PWFA and provides examples of possible reasonable accommodations. For example, it outlines situations in which an employer might have to temporarily excuse an employee from performing an essential function of the job. It also identifies modifications that the EEOC will find to be reasonable and not an undue hardship in virtually all cases. These include (1) allowing an employee to carry water and drink, as needed, in the employee’s work area; (2) allowing more restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand, and (4) allowing breaks, as needed, to eat and drink.
Proposed Enforcement Guidance on Harassment. The EEOC also has proposed a new Enforcement Guidance on Harassment in the Workplace, the first update in over 30 years. Guidance is more informal than regulations and are not binding, but they provide useful advice for employers. It contains provisions relating to LGBTQ+ employees, including examples of harassment such as denial of access to a bathroom consistent with the employee’s gender identity or repeated and intentional misgendering of an employee. In addition, it discusses sexual harassment as covering harassment based on pregnancy, childbirth and other related medical conditions. The guidance is likely to be finalized and adopted in early 2024.
Employers should watch for the final PWFA regulations and the final harassment enforcement guidance, and pay special attention to their practices relating to the EEOC’s newly-announced areas of emphasis.
A version of this Article appeared in the State Bar of Michigan Labor and Employment Law Section’s Winter 2024 Lawnotes.