The EEOC's priorities in 2023: 4 trends employers need to stay on top of

The Equal Employment Opportunity Commission filed only 95 lawsuits in the fiscal year that ended in September, down from 114 a year ago. But 2023 just might be the year that the agency ratchets up its activity in a big way, according to Seyfarth Shaw’s newly released “EEOC-Initiated Litigation: 2023 Edition.”

The five-person commission is poised to gain a Democratic majority this year, and the agency also has at its disposal a budget of $465 million, a whopping $60 million increase.

“With a Democratic majority inevitably on the horizon, a generous budget increase … as well as several new strategic objectives planned for FY 2023, a busy year may very well lie ahead,” the 52-page report says.

The report spotlights legal shifts, trends and other EEOC matters that legal departments need to stay on top off, said Christopher DeGroff, an author of the report and a Chicago-based partner for Seyfarth Shaw.

“While there’s much written about the EEOC, there are some spots in its agenda that are hard to penetrate,” DeGroff said in an interview. “We hope that our book gives some insight into what EEOC priorities are, so those can become priorities of the decision-makers.”

Here are four issues the report highlights:

#1: After Dems gain control, lawsuits may surge

The EEOC has five commissioners, with no more than three belonging to the same political party.

When Republican Janet Dhillon departed in November, the commission went from being 3-2 Republican to tied 2-2. President Joe Biden has nominated civil rights attorney Kalpana Kotagal, a partner at Cohen Milstein, but she has yet to be confirmed by the Senate.

Her eventual confirmation, giving the Democrats control, is likely to unleash a more aggressive EEOC, according to Seyfarth Shaw.

“[Attorneys] who are in the EEOC regions could be biding their time until they have the support at the institution, which they need to bring the cases they want to bring,” said Andy Scroggins, another report author and Chicago-based Seyfarth Shaw partner.

#2: Industries lacking diversity should watch out

The EEOC this month released its draft Strategic Enforcement Plan, which provides a roadmap for enforcement priorities from 2023 through 2027.

The SEP says, “The lack of diversity in certain industries and workplaces (such as construction and high tech, among others), especially in growth industries and industries that benefit from substantial federal investment, are … areas of particular concern.

“Although this priority typically involves systemic cases, a claim by an individual or small group may qualify if it raises a policy, practice, or pattern of discrimination.”

At a public hearing last spring, EEOC Chair Charlotte Burrows called out the construction industry for bad behavior.

“Unfortunately, although the industry has many responsible actors, some of the most severe cases of discrimination the agency has encountered arose in construction,” she said.

According to the EEOC, the $1.2 trillion federal Infrastructure Investment and Jobs Act, passed by Congress in 2021, obligates the agency to ensure that the spending deluge doesn’t go toward fueling discrimination and harassment.

Between May and December of 2022, the EEOC filed about a dozen lawsuits against construction firms and reached five settlements with players in the industry that yielded $2.8 million, Law.com reported late last year.

#3: How far do LGBTQ+ protections go?

In 2020′s Bostock v. Clayton County Georgia, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination against gay or transgender employees, as a form of sex discrimination.

It’s a big victory for the EEOC, the report reads.

“The EEOC has historically been an agency which has tried to push the envelope when it comes to expanding rights under existing statutes,” DeGroff said. “Bostock gives the EEOC propellant to not only maximize enforcement efforts in regards to LGBTQ+, but also gives it a foothold to further expand the reach of statutes like Title VII.”

However, many Republicans believe the EEOC is seizing on that ruling to push LGBTQ+ rights that go well beyond the scope of Bostock. For example, the EEOC in June 2021 issued guidance to employers that LGBTQ+ employees now were permitted exemptions from workplace policies on bathrooms, dress codes and locker rooms.

In a case filed by Texas challenging the guidance, a federal judge in October agreed with the critics, finding the guidance unlawful. But that’s not the end of the story, Francis Boustany, a legal analyst at Bloomberg Law, told Bloomberg.

He said the judge didn’t decide whether that conduct is or isn’t protected in general—simply that Bostock did not reach a determination on that issue.

“Employers shouldn’t stop what they’re doing in response to this ruling,”  Boustany told Bloomberg. “There’s a lot more to be litigated here. This ruling does not make policy in one way or the other; those are still areas to be litigated.”

#4: EEOC brings claims under rarely used Title V

The EEOC surprised observers in 2021 by bringing a claim under Title V of the Americans with Disabilities Act, a rarely used section of the ADA that prohibits “interference” with the exercise of any right protected by the ADA.

Last year, that claim survived a motion to dismiss.

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The case, EOC v. Geisinger Health, involves a former nurse and other former and current employees of Geisinger Wyoming Valley Medical Center who were required to reapply and compete for employment opportunities after they took medical leaves.

After Geisinger filed a motion to dismiss, a court tossed out most of the case but let stand the Title V claim—citing, in part, the “scant case law” on what constitutes interference. The interference claim was based on the fact that the company withdrew its job posting for Casterline’s position after she sought to reapply for it.

According to the court, the EEOC’s allegations raised an “inference that Geisinger ‘meddles’ when employees attempt to exercise their rights under the ADA.” “Employers should take particular note of the court’s decision to uphold the ADA Title V claim,” Seyfarth Shaw’s report says. “Given its success in Geisinger Health—perhaps in part due to the underdeveloped nature of such claims—employers should be careful that their policies and practices cannot be construed as ‘meddling’ when employees attempt to assert ADA-protected rights.”