The EEOC Litigation Review - 2023 - Report - Page 15
The EEOC’s Strategic Priorities
1. Artificial Intelligence
While the EEOC’s focus on eliminating barriers in recruitment and hiring is not a new
phenomenon, employers’ increasing use of artificial intelligence in hiring has added a
new wrinkle in this space. The SEP specifically notes that the EEOC will focus “on the
use of automated systems, including artificial intelligence or machine learning, to target
job advertisements, recruit applicants, or make or assist in hiring decisions where such
systems intentionally exclude or adversely impact protected group.” Id. at 9. The
Commission adds that it will monitor screening tools or requirements that
disproportionately impact workers based on their protected status, including those
facilitated by artificial intelligence or other automated systems, pre-employment tests,
and background checks. Finally, the EEOC notes that it will keep an eye on restrictive
application processes or systems, including online systems that are difficult for
individuals with disabilities or other protected groups to access.
Employers who utilize artificial intelligence in the hiring process should take heed. The
EEOC listed this category first in terms of subject matter priorities. Given the
Commission’s implied skepticism in regards to the impact of automated hiring software,
now is the time for employers to vet their systems and make sure they are legally
compliant.
2. Systemic Harassment
Preventing and remedying systemic discrimination has long been a cornerstone priority
for the EEOC. The EEOC Commissioners appointed by different presidential
administrations have taken varying approaches to tackling discrimination on a systemic
level, but regardless, the EEOC always has its eyes open for instances where there is
widespread discriminatory practices at a company. The SEP makes clear that
“[h]arassment remains a serious workplace problem,” noting that over 34% of the
charges of employment discrimination the EEOC received between FY 2017 and FY
2021 included an allegation of harassment. Id. at 14. The SEP labels this a potential
systemic issue, noting that a claim by an individual or small group may fall within this
priority if it is related to a widespread pattern or practice of harassment. The EEOC
indicates it will combat this problem by focusing on strong enforcement with appropriate
monetary relief and targeted equitable relief to prevent future harassment.
While isolated incidents of harassment at largescale organizations may seem inevitable,
the SEP’s declaration of this priority suggests employers need to pay closer attention to
claims of harassment. If the EEOC senses that harassment is part of the fabric of an
organization’s culture, such a situation could be ripe for a systemic discrimination claim.
Accordingly, employers should take each individual claim of harassment seriously, and
should consistently work to eradicate such behavior from the workplace.
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© Duane Morris LLP 2023
The EEOC Litigation Review – 2023