There are several reasons companies should pay attention to the potential Equal Employment Opportunity Commission (EEOC) trends for 2023 and prepare accordingly. As the EEOC targets which areas of human rights and protection it wants to focus on for the next few years, companies scramble to anticipate where they might be falling short. One key area of focus is on promoting diversity and inclusivity within the workplace, particularly concerning the LGBTQ+ community and ADA rights.
The EEOC has indicated that it will be closely monitoring the treatment of LGBTQ+ individuals in the workplace, particularly with regard to harassment and discrimination. Companies should take proactive measures to create a safe and inclusive workplace for all employees, regardless of sexual orientation or gender identity.
In addition to promoting diversity, companies should also consider implementing training programs to educate employees on the importance of creating an inclusive workplace. This includes providing resources and support for LGBTQ+ employees, such as employee advocacy groups and non-discrimination policies.
What is driving the EEOC trends, and what can businesses do to prepare?
Litigating Power in 2023
The EEOC is composed of five individuals. In 2023, it is anticipated that the political balance will tip to the left and there will be a democratic majority. With the goal of worker equality through employer accountability and employee recourse, the EEOC democratic majority could flex its power to investigate and prosecute cases of discrimination.
Add to that, the 60-million dollar budget increase, and the commission will have the motive and the means to more aggressively pursue EEOC-Initiated Litigation for the foreseeable future.
Protecting Diversity in Industry
As the primary federal agency responsible for enforcing laws against discrimination in the workplace, the EEOC recently released its Strategic Enforcement Plan (SEP) for 2023 through 2027.
During the fiscal year 2022, its plan of action included the following:
- Addressing selected developing issues
- Preventing systemic harassment
- Eliminating recruiting and hiring barriers
- Protecting vulnerable workers
- Ensuring equal pay protections
- Preserving access to the legal system
To that, the proposed SEP for 2023-2027 includes additional measures to protect people with pregnancy-related medical conditions and LGBTQ+ individuals in the workplace.
Diversity has been missing in many industries, including construction and many high-tech fields, which are rapidly growing sectors that receive a lot of governmental support. This is something that needs to be addressed urgently.
Systemic cases are generally given priority when it comes to pursuing legal action against discrimination. However, if an individual or a small group brings up a policy, practice, or pattern of discrimination that needs to be addressed, then their claim may also be considered.
Recent Trends in Litigation…
Recently, some of the worst cases of discrimination the EEOC has uncovered have been in the construction industry.
Due to the $1.2 trillion federal Infrastructure Investment and Jobs Act, Congress passed in 2021, the EEOC feels obligated to ensure the massive budget isn’t used to haphazardly promote or enable harassment or discrimination in the field. During the last half of 2022, the EEOC filed multiple lawsuits with construction firms that resulted in $2.8 million in settlements.
Further LGBTQ+ Protections
In 2020, the U.S. Supreme Court determined that Title VII of the Civil Rights Act of 1964 could be used as the grounds for sex discrimination cases since gay or transgender employees would fall under its umbrella of protection. As mentioned in their report, this was seen as an incredible victory for the EEOC.
Considered a leader in promoting people’s rights within the LGBTQ+ community, the EEOC is constantly striving to expand its protections under existing statutes. Further expanding laws like Title VII could help maximize their enforcement efforts to ensure that everyone is treated fairly.
Republicans, however, could claim that this effort by the EEOC to push LGBTQ+ rights beyond their current scope is an abuse of its power. They may push back.
Similarly, in June 2021, the EEOC issued guidance to businesses giving LGBTQ+ workers exemptions from workplace policies on dress codes and regarding bathrooms and locker rooms. A later federal ruling sided with critics and stated that using the 2020 ruling as the legal precedent for expanding Title VII was premature. It basically concluded that the ruling is not definitive and there was much to be considered and many areas to be litigated in the future.
By making the effort to build an atmosphere of inclusivity in the workplace, employers can invite greater diversity to their company. This creates a more positive setting for a productive workforce and encourages a broader range of new talent, which is a win-win for all involved.
By prioritizing diversity and creating an environment where workers feel included and valued, companies will be better equipped to navigate possible legal challenges and avoid litigation related to discrimination.