Every few years, the Equal Employment Opportunity Commission (“EEOC”) announces its “strategic enforcement plan,” providing employers a roadmap of areas where they can expect increased scrutiny from the agency. The EEOC’s “top priority” for 2017-2021 has been on investigations and litigation of what the agency considers “systemic” problems. EEOC charges for systemic discrimination have typically involved areas such as background checks and testing, disability discrimination, pregnancy discrimination, and pay equity.

These investigations come about after the EEOC has compiled data to allege that a discriminatory pattern or practice is occurring within a workplace.

While a new strategic enforcement plan for the next four years is expected later this year, the recently appointed Chair of the EEOC highlighted her commitment to these “strategic” efforts in her first public speech earlier this year. Around that same time, the EEOC updated its website to highlight a few new areas the EEOC believes are ripe for “strategic” action. Those areas include a few notable additions to the “usual” list, including:

• Using artificial intelligence to sort through applications;
• Personality tests;
• Using terms such as “young,” “energetic,” “recent graduate,” “men only,” or “women only” in job searches;
• Parental leave policies that offer different benefits for men and women;
• Waivers that prevent filing complaints or assisting the EEOC.

The EEOC focus areas are not limited to certain industries – they apply to all employers. Any time the EEOC tells employers that it is focusing on a particular issue, that issue should be on employers’ radar, meaning that many employers need to carefully review their existing policies and practices to discern whether any changes are needed. For example, employers who rely on AI data for hiring efficiency and organization may need to change those practices or at least ensure the employer’s selected AI keywords or search terms do not import biases into the application process.

Additionally, employers should review their leave policies in light of discrimination laws that may have evolved and expanded since they were originally written. In today’s employment law world, employers must juggle the interplay between sex discrimination and the need for accommodation.

Simply put, policies and practices that may have been fine in the past may land employers in hot water now. The EEOC has made clear that they will be on the lookout for these “systemic” problems, so now is the time for employers to get their houses in order before the agency comes to investigate.