The Potential Impact of the EEOC Equity Action Plan | Spilman Thomas & Battle, LLC

Shortly into his administration, President Biden signed Executive Order 13985, “Promoting Racial Equity and Support for Federally Underserved Communities.” In April 2022, pursuant to this Executive Order, the Equal Employment Opportunity Commission (“EEOC”) released its “Equity Action Plan”, which contains several elements that may have a impact on employers.

The EEOC summarizes its equity action plan by stating that it “focuses on addressing systemic racial discrimination, promoting equity in agency operations, and improving community awareness. underserved”. The EEOC plans to achieve these goals by:

  • Improve worker access to the EEOC filing process so that people in rural areas who have rigid schedules or limited digital resources can use EEOC services with greater ease;
  • Engage with a wide range of employers, researchers, workers and civil rights organizations to support diversity, equity, inclusion and accessibility (“DEIA”);
  • Further develop EEOC data collection and analysis to support effective enforcement of EEO laws and encourage individuals to exercise their civil rights; and
  • Continue to improve access to EEOC resources for non-English speaking workers and for those with limited reading skills or who do not have access to digital resources.

1. Improve worker access to the billing process
The EEOC plans to improve workers’ access to file charges with the EEOC by shortening the wait time for intake appointments; increase its national call center staff, including staff who can accommodate non-English speaking employers; make its admission forms and public portal available in other languages; and increasing outreach events in more rural areas.

By increasing access to the charge process, we anticipate that employers will see an increase in charges filed with the EEOC. Nor would we be surprised to see similar measures employed by states.

2. Pledge to support DEIA
This commitment aims to identify barriers and strengthen recruitment and hiring practices to ensure that workers who have historically been unrepresented have access to good jobs. The EEOC recognizes that the country continues to recover from the pandemic and that employers have faced historic job losses. The EEOC believes these changes create an opportunity for employers to re-examine recruiting, hiring, promotion and retention practices to ensure that these practices do not create barriers to attraction and retention. hiring a wide range of candidates. The EEOC says it plans to focus on providing resources and identifying strategies to help employers recruit, hire and promote minority employees and increase the rank of such individuals in leadership positions. .

The EEOC further indicates that it will build on its initiative on the use of artificial intelligence and algorithms to make employment decisions. Employers should note the EEOC’s use of these new technologies and the potential impact they may have on the EEOC’s law enforcement efforts in the future, particularly with respect to charges related to employers’ hiring, retention and promotion practices and decisions.

3. Further develop data collection and analysis
To implement this goal, the EEOC plans to update demographic categories on relevant EEOC forms (including gender self-identification categories for charge-related forms and possibly other breakdowns on the ethnic origin and the addition of sexual orientation, gender identity and disability status to EEO-1 forms); explore ways to make EEO data more accessible; perform a more focused and in-depth analysis of existing internal and billing data; and determine whether to expand its existing EEO data collection, including to better identify intersectional discrimination.

For internal analysis of prosecution and investigative data, the EEOC further intends to develop a complaint tracking system that will enable real-time analysis of various data sets within the federal sector; and identify and analyze persistent disparities in investigation, litigation and settlement outcomes in order to develop and implement mechanisms to create more equitable outcomes.

As the EEOC develops and collects an ever-increasing amount of data, we anticipate that this information could impact both how the EEOC handles accusations of discrimination as well as how the EEOC handles the voluntary resolution of charges through mediation, settlement and conciliation. .

The EEOC further indicates that in 2020 it completed its first historical collection of salary data from private sector employers and that this data is being analyzed and will inform the agency’s future collection of salary data. Once this compensation data has been reviewed and analyzed, we expect the EEOC (under the leadership of President Biden) to use this information to resurrect the requirement that wage and hour data be reported by employers through the EEO-1.

As large employers may recall, in 2016 (during the Obama administration), the EEO-1 survey was revised to require employers with 100 or more employees to report wage and hour data. worked broken down into different wage bands, job categories and by race, ethnicity and gender. This revised EEO-1 survey was legally challenged and ultimately blocked by the Trump administration in 2018. So while we expect the salary data request to be included in the EEO-1, we also plan to other legal challenges.

4. Continue to Improve Access to EEOC Educational Materials and Websites
The EEOC notes that the majority of its website and educational materials are only accessible to people with a high level of English literacy and the ability to access online resources. The EEOC plans to focus on identifying the most visited EEOC web pages and plans to translate them into languages ​​other than English and provide auditory resources for people with limited reading skills.

As with the first goal of the EEOC’s Equity Action Plan, with greater access, it is possible that employers will see an increase in charge filing activity as a result of these changes.


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