Feds widen target list for fighting employment bias

For a road map to which hot-button discrimination issues may draw scrutiny from the U.S. Equal Employment Opportunity Commission, see the agency’s recently released draft Strategic Enforcement Plan.

The SEP lays out in detail the agency’s priorities and enforcement goals for fiscal years 2023-2027, and employers should take heed, experts say.

Among top priorities the EEOC will focus on are potentially discriminatory recruitment and hiring practices such as those involving the use of automated systems including artificial intelligence (AI).

“The strategic enforcement plan is where the EEOC tells us where they intend to focus their resources over the next five years,” says Andrew Scroggins, a partner in the Chicago office of Seyfarth Shaw and co-author of Seyfarth’s EEOC report addressing enforcement priorities.

Seyfarth breaks down some of the EEOC priorities in detail at tinyurl.com/waftyx2k

Employers should take these priorities seriously, Scroggins says, noting he anticipates ramped-up EEOC enforcement this year, given factors including an increased budget — $465 million, a $60 million increase from FY 2022 — and an anticipated Democratic majority this year on the commission.

Among priorities, the EEOC has shown increased interest in how employers use technology to recruit and hire workers, according to the Seyfarth report.

“Here, the Commission has emphasized its intent to investigate whether protected groups might be harmed — whether intentionally or not — by automated systems used to target job advertisements to particular populations, recruit workers, or aid in hiring decisions,” the report noted.

For instance, when you can micro-target your job ads, "are you doing that in a way that’s denying opportunity to people in protected classes?” Scroggins said. The EEOC bars discrimination against applicants, employees and former employees based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability and genetic information (including family history).

Scroggins noted there have been past EEOC charges filed against certain employers alleging the use of targeted Facebook ads to exclude women and older workers from seeing job listings.

Since launching its initiative on algorithmic fairness in October 2021, the EEOC has been increasing its focus on AI, says Harris Mufson, a partner in the Manhattan office of Gibson, Dunn & Crutcher LLP.

In May 2022, the EEOC filed its first enforcement action alleging algorithmic discrimination, he says.

In that lawsuit, the EEOC alleges that three integrated companies providing English-language tutoring services to students in China under the “iTutorGroup” brand name violated federal law by programming its online recruitment software to automatically reject older applicants. See tinyurl.com/2p93pd75.

An attorney for iTutorGroup didn’t respond to requests for comment from Newsday.

Mufson says the EEOC has issued limited guidance in this AI area, but added there likely will be more guidance coming.

“The technology is evolving in real time,” Mufson says. “It’s certainly a challenge for the government to keep up with rapid advancements in technology and provide timely guidance for employers.”

Consider employers are using game-like tests and assessments to “measure abilities and personalities” and then rank potential hires, says Ruth Kraft, a partner at Falcon Rappaport & Berkman LLP in Rockville Centre.

She said the EEOC is looking at this because they could be discriminatory for persons such as those with disabilities. Such individuals may need, for example, extra time to take these tests, she says.

And they may be automatically being screened out by AI without an “interactive dialogue” to ask for an accommodation, Kraft says.

Employers need to assess the tools they're using to see if there is a kind of bias built in, she says.

Another area employers should consider based on the EEOC’s draft enforcement plan is pay equity, Kraft says.

The EEOC’s draft SEP states: “The Commission will also focus on employer practices that may impede equal pay or contribute to pay disparities and may lead to violations of statutes the Commission enforces, such as pay secrecy policies, retaliating against workers for asking about pay or sharing their pay with co-workers….”

To get ahead of this, at least once every three years employers should be doing a pay equity analysis to help identify pay gaps within an organization, says Barbara DeMatteo, director of HR consulting at Portnoy, Messinger, Pearl & Associates in Jericho.

That’s not just due to the EEOC prioritizing pay equity, but "shouldn’t there be equal pay for workers anyway," she says.

Among other enforcement priorities will be pregnancy discrimination and expansion of what the EEOC sees as vulnerable populations to include LGBTQIA and low-wage workers, Kraft says.

DeMatteo said employers should examine this draft SEP to look at the direction the EEOC is taking and take preventive measures.

The draft SEP was subject to a comment period that ended on Feb. 9. Although it’s unclear when a final SEP will be adopted, Mufson said, it will likely "remain consistent with what the EEOC has proposed.”

By Jamie Herzlich

jherzlich@aol.com

Herzlich writes the Small Business column in Newsday.