In 2023, What’s New with the EEOC?

The Equal Employment Opportunity Commission’s Increased Fiscal Budget Lays Groundwork for Expanded Enforcement

As HR professionals, we’re all familiar with the EEOC and it’s regulatory guard over the employee-employer relationship. As with any other organization or business, the EEOC is guided by goals and priorities which are evaluated year over year. Its main purpose is to protect workers’ rights by eliminating employment discrimination and promoting inclusive workplaces. Last year, the agency’s six strategic priorities were:

• Eliminating barriers in recruitment and hiring.
• Preventing systemic harassment.
• Protecting vulnerable workers.
• Ensuring equal pay protection for all workers.
• Preserving access to the legal system.
• Addressing selected emerging and developing issues.

The agency’s proposed strategic enforcement plan for the 2023-2027 fiscal years (https://www.federalregister.gov/documents/2023/01/10/1023-00283/draft-strategic-enforcement-plan) includes:

• Expanding the category of vulnerable workers to include people with intellectual and developmental disabilities, individuals with arrest or conviction records, LGBTQI+ individuals, temporary workers, older workers, individuals employed in low-wage jobs, and workers with limited literacy or English proficiency.
• Recognizing employers' increasing use of artificial intelligence (AI) and machine learning in job advertisements, recruiting and hiring.
• Focusing on discrimination associated with the COVID–19 pandemic and other threats to public health, violations of the newly enacted Pregnant Workers Fairness Act (shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/pages/senatepregnant-worker-protections.aspx) and technology-related employment discrimination.
• Focusing on overly broad nondisclosure agreements (www.shrm.org/ResourcesAndTools/legal-and-compliance/employmentlaw/pages/ndas-sexual-misconduct-claims.aspx) and non-disparagement agreements.

The new 2023 fiscal budget is $455 million, an increase of $35 million over last year. A bigger budget allows the agency to catch up on prior backlogged cases freeing up personnel to focus on more proactive measures both in litigating current charges as well as pursuing additional ones. The increased funding also provides the means to invest in better technology and enhanced talent to more effectively litigate cases and charges. With the additional funds to back the organization’s initiatives, the EEOC will have the resources required to impose a more strategic approach to defining and identifying employment discrimination while also significantly expanding its enforcement efforts.

Ramped-up enforcement efforts are expected to target ongoing issues such as pay discrimination and sexual harassment as well as newer employment objectives such as the use of artificial intelligence (AI) in recruiting practices.

The focus on AI in recruiting is a new one for the EEOC. The concept of using AI to screen candidates for employment is attractive because it saves employers time and money. It can add efficiency to recruiting programs by streamlining processes and eliminating time wasted on unqualified candidates. If done properly, it can be an advantageous tool.

If employed carefully and thoughtfully, AI tools will evolve and learn based on the information gathered from and provided by its users, both candidates and employers. Therein lies the issue – if the programming of the AI tool isn’t carefully monitored (by a human), it may inadvertently begin developing certain biases over time which could end up putting an employer in the very precarious position they were trying to avoid by using the tool in the first place.

If using an AI tool in your hiring process, consider these things:

• While some states require employers to provide notice or get consent from job applicants before they use AI tools as part of the hiring process, it is a best practice to always inform the applicant.
• Be clear about what is being evaluated using the AI tool so any applicants requiring a special accommodation have the information necessary to determine if they should inquire about one.
• As with other forms and information requests gathered during the hiring process, ensure your recordkeeping practices are consistent and intentional.
• Develop a close relationship with your AI vendor and request to be alerted of any and all federal and state law changes as it relates to how you may be using your AI tool.

As the definition of protected classes and vulnerable workers continues to expand, unprecedented policies continue to be created and revised in response to Covid-19 relevance, and technology increasingly impacts how we perform everyday tasks, there is no shortage of focal points for the broad reach of the EEOC. Now that you’re aware of the agency’s proposed advanced enforcement efforts for 2023, take the time to protect your business by ensuring compliance in these and all other employment-related areas.

The agency’s main focus is identifying areas where a company policy negatively affects a certain group, whether it’s one employee or several employees representing an identifiably vulnerable group. Don’t let an unintentional infraction become a legal issue before you address it. Evaluate your workplace polices and training programs to ensure they are clear, compliant, and up-to-date. Be certain they are applied consistently across the organization and that appropriate documentation and recordkeeping measures are being followed by all departments.

Don’t know where to start? Contact a member of our empact hr division and let us help you put your mind at ease. Our comprehensive audit package helps identify areas of risk in your organization, giving you the opportunity to correct issues before they become bigger problems. Call us today to get started!

REMA GRAY, SHRM-SCP
Senior HR Advisor, HR Services

With a lifelong interest in relationship management and a deep curiosity for human behavior in the workplace, Rema Gray began her payroll and HR career over 25 years ago. She pursued a degree in Psychology from the University of South Alabama and parlayed her education and training into a Human Resource Management career. Her experience ranges from managing the intricacies of human capital growth and development of small local businesses to developing teams and managers for large national corporations. She has worked in many industries, including chemical plants and oil refineries, business services, retail, and many other spaces. She currently manages HR for Crescent Payroll Solutions, contributing to the creation of policies and procedures, measuring and managing organizational risk, organizing, training, and developing of the operations team, and maintaining a high level of employee engagement. Rema’s passion is getting everyone in the proverbial boat rowing in the same direction. She believes employee commitment to the organization’s Mission, Vision, and Values is not only essential to the achievement of its goals but also paramount to the overall health and sustainability of the organization itself.

“Human Resources is a basic term to describe a dynamic topic. Focusing on the human part of it is integral to the success of any employee-based business.”