The EEOC Litigation Review - 2023 - Report - Page 16
3. Equal Pay
The SEP makes clear that equal pay, and gender pay differences in particular, will
continue to be a focus for the EEOC. The SEP notes that “[b]ecause many workers do
not know how their pay compares to their coworkers’ and, therefore, are less likely to
discover and report pay discrimination, the Commission will continue to use directed
investigations and Commissioner Charges, as appropriate, to facilitate enforcement.”
Id. at *13. Transparency appears to be a key component of this strategic priority, as the
EEOC opines that pay secrecy policies, retaliating against workers for asking about pay
or sharing their pay with coworkers, reliance on past salary history to set pay, and
requiring applicants to specify their desired or expected salary at the application stage
will all be areas of concern.
Pay audits should be a consistent practice for employers. If they are not, the EEOC’s
inclusion of this priority in its SEP suggests that the Commission will aggressively
investigate such claims and ask employers to produce data. Employers can best avoid
the time and cost-draining exercises of producing pay data by proactively examining
their compensation practices up front.
4. Additional Priorities
The remaining three subject matter priorities include: (1) addressing emerging and
developing issues; (2) protecting vulnerable workers; and (3) providing access to
justice. In regard to emerging issues, the SEP seeks to address discrimination that is
influenced by local, national and global events, such as pandemic-related discrimination
and incidents of targeting various racial and religious groups. The SEP also seeks
enhanced protections for vulnerable workers, such as migrant workers, disabled people,
older workers, teenaged workers, and LGBTQ+ individuals. Finally, the SEP seeks to
focus on policies and practices that limit substantive rights, discourage or prohibit
individuals from exercising their rights under employment discrimination statutes, or
impede the EEOC’s investigative or enforcement efforts. For example, this priority
includes practices that deter or prohibit filing charges with the EEOC or cooperating
freely in EEOC investigations or litigation.
In sum, these additional priorities are geared towards flexibly adopting to the evolving
needs of the workforce, to make sure all individuals have uninhibited access to justice.
While the 2023-2027 SEP is currently in draft form, we do not anticipate that there will
be any significant overhaul, particularly in regards to the strategic priorities that are
analyzed in this blog post. Accordingly, prudent employers should be mindful of these
strategic priorities, and get a head-start on compliance if they have not already done so.
III.
Key Rulings In EEOC-Initiated Litigation
In 2022, there were 83 rulings filed across the country in cases brought by the EEOC.
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© Duane Morris LLP 2023
The EEOC Litigation Review – 2023
