'The EEOC is busy': class action employment lawyers warn HR

Increased EEOC budget means more investigation, more litigation in employment discrimination cases

'The EEOC is busy': class action employment lawyers warn HR

The Equal Employment Opportunity Commission (EEOC) released its 2023 employment discrimination lawsuit filings, and there is more than a 50% increase over 2022.

Lawyers are warning employers to be ready for more litigation in the coming year.

Out of 143 employment discrimination filings in the EEOC’s last fiscal year – October 1, 2022 to September 30, 2023 – 25 were systemic cases, almost double the amount of systemic suits filed in the last three years.

There were 32 non-systemic class lawsuits filed by the EEOC, and 86 suits filed on behalf of individuals.

More discrimination investigations

In their annual round-up of EEOC litigation, Duane Morris class action lawyers Jerry Maatman, Jennifer Riley and Alex Karasik said that since the EEOC’s 2024 federal budget was increased by over $26 million, employers will be seeing a rampup in employment discrimination investigations. 

After a downturn in employment discrimination cases during the pandemic, Maatman said, the needle is trending upward, with Civil Rights Act Title 7 cases making up the majority, at 68%.

“The takeaway from all of this is, the EEOC is busy,” said Maatman. “The EEOC is adding investigators, the EEOC is filing more lawsuits.”

AI discrimination lawsuits on the rise

The lawyers outlined some main areas for HR professionals to be aware of, one of which is AI employment discrimination cases, which are anticipated to steadily rise as organisations continue to implement more technology into their processes.

“The EEOC has been very vocal in the space over the last two years,” said Karasik. He explained that since the EEOC launched its Artificial Intelligence and Algorithmic Fairness Initiative in 2021, it has been more focused on how emerging technologies used by HR departments to recruit, hire and pay employees are impacting the industry. 

Maatman added that he believes the EEOC is currently “searching for the quintessential AI case” to bring to court to establish a precedent for AI employment discrimination law.

“It's looking for the exact set of facts that will present to a court a situation that the EEOC thinks it can win, and that it will make law,” said Maatman.

“So I think that employers using artificial intelligence have to be uber aware of the EEOC’s special radar and focus on that particular area, and that is an area that is laden with risk, that more often than not is going to see the inside of a courtroom in the next 12 to 24 months.”

Gender identity and transgender discrimination

Since a landmark U.S. Supreme Court decision in 2020 (Bostock v. Clayton County) that ruled that employment discrimination based on sexual orientation or transgender identity violates Title 7 of the Civil Rights Act of 1964, the EEOC has been cracking down on discrimination against LGBTQ workers, Karasik said.

For example, in March 2023, the EEOC charged T.C. Wheelers, Inc. in New York, alleging the restaurant’s management and employees deliberately misgendered and harassed an employee because of his transgender status and gender identity.

“The issue of gender identity and pronouns has become something that's increasingly more prevalent in the workplace,” Karasik said. “And for those employers that haven't gotten around to training employees on what are the proper ways to address certain individuals in their workforce, this case is an example of how such behavior can ultimately amount to an EEOC-initiated litigation.”

Remote work increasingly protected

Another area of focus is remote work accommodations, where Maatman pointed out the EEOC has been taking a more employee-sympathetic approach remote work as a disability accommodation. For example, the EEOC charged a pediatric health clinic in Georgia, Atlanta, for firing an employee who wanted to work remotely to be near her emotional support animal. In a statement, the EEOC found that action “a clear violation of the ADA [Americans with Disabilities Act], which the EEOC is proud to enforce.”

The pandemic demonstrated that many jobs can be performed from home, Karasik explained, and many EEOC agents themselves worked remotely during COVID-19.

“The EEOC is not necessarily attacking head-on the remote work issue, but it's popping up in various ways,” he said.

“Which suggests that theme of the EEOC taking a stance on the availability and the use of remote work, and trying to shift the thinking there, in terms of making it more prevalent as a potential accommodation … that threshold is really a moving target, in terms of where we are today versus where we may have been several years ago, and I think it'll be interesting to see where that line goes in the next five years.”

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