HRs hold the weight of the company on their shoulders with the most important responsibility of protecting their employers from lawsuits. In the 2024 fiscal year, the Equal Employment Opportunity Commission (EEOC) has been successful in their efforts to pursue litigation against employers on several trending issues.

Among many other challenges that come with a lawsuit from the federal government, these cases can be drawn out for years and ruin your brand through public press releases by being picked up by mainstream media. The EEOC is cultivating their next batch of targets and with these large cases, they’re getting better at what they do. 

“They’ve hired more front-end personnel, and they brought in some experts in house, including labor economists, statisticians, so they can execute on their big picture goals,” according to Christopher J. DeGroff, a Partner at Seyfarth Shaw. “When you get sued by the EEOC, it can have a really big impact.”

“There were 144 filings in the 2023 fiscal year and those cases didn’t go away. Those cases will most likely continue to go for another three or four years,” reports Nina Xiang of SHRM. The likelihood of an employer being sued can also sometimes depend on the geographic area, with a large number of cases coming out of Indianapolis, Atlanta, Phoenix, and Philadelphia in 2024.

HRs question whether the EEOC will change with the results of the election. However, the EEOC are career employees, not appointed by government officials. The commission is made up of 15 districts that have their own discretion about what cases they bring. Although there are certain trigger, high-impact cases that have to be voted on by the full commission, they have their own resources and their own agendas. So it is not expected that there will be much of a shift in 2025.

In the spirit of creating a systematic approach to your compliance efforts, we’ll analyze what type of cases the EEOC is currently investigating and what you can do to stay proactive in protecting your employer in 2025.

In the past three years, equal pay was a big concern of the EEOC and made up the majority of cases, but in 2024 it was the Pregnant Workers Fairness Act (PWFA) which accommodates pregnancy-related limitations that gained popularity. PWFA, which took effect on June 27, 2023 borrows a lot of language from Title 7 and the American Disabilities Act (ADA), but is less strict in its application.

Highlights of PWFA

• The EEOC initiated at least three lawsuits under the Pregnant Worker Fairness Act and is now up to seven.
• PWFA requires employers to make reasonable accommodations to a broad range of things related to pregnancy and childbirth, and any medical condition that is in any way related to pregnancy or childbirth, including current pregnancies, past pregnancies, or expected or hoped for future pregnancies.
• There is a low bar for requesting accommodation in that the employee only needs to communicate to the employer that they have a limitation that needs to be accommodated and that it’s related to pregnancy or childbirth.
• The EEOC is also looking for overlap between pregnancy cases and ADA cases. If you’re using ADA forms as a starting point or repurposing forms for the Pregnant Workers Fairness Act, it’s important to review those documents carefully and eliminate references to things like “serious health condition” or “major like life activities” that are often a part of an ADA accommodation request, but which would not be appropriate under the Pregnant Workers Fairness Act.

Case in Point: PWFA

There is a particular issue at the heart of one of the EEOC first cases. The EEOC versus Polaris case in which the EEOC is alleging that the employer continued to dock attendance points under its attendance policy when a pregnant worker was missing work to go to prenatal doctor’s appointments.

It’s recommended to review your attendance policies and ensure that you’re not penalizing employees who are missing work for things like medical appointments related to pregnancy.

Compliance Tip: It’s important to train your supervisors and those with authority in your organization about the Pregnancy Fairness Act about their responsibilities so they can make an adjustment for a verbal request from employees due to a pregnancy or related condition.

Making sure your managers and supervisors are trained is going to be a critical step to ensuring compliance and hopefully staying out of the EEOC cross hairs to mitigate the risk of claims that you’re moving too slowly by providing an interim accommodation.

1. Various state laws that deal with political expression and off-duty conduct.
2. Political, religious, or social issues that spill into the workplace that impact employment law. Especially after the October 7, 2023 attack on Israel by the terrorist group, Hamas. The fallout has been an increase in anti-Arab, anti-muslim, and antisemitic discourse or perceived action.
3. Employees are much more vocal about their identity at work, including violations of religious beliefs, needing to refer to people by names or pronouns that they don’t feel they are aligned with at birth, political shirts worn at work, refusal to attend DEI trainings, pride flags in cubicles, and discrimination in hiring for people taking part in encampments.

There is not a risk-free option and there will be a trade-off between stakeholders when it comes to enacting policies around political or social issues.

The advice to tackle these issues is to first take a deep breath, then assemble a team to determine your corporate goals. Get back to your mission statement and vision for the company while looking at existing policies as a moral compass (include C-Suite executives, who are often best able to be the voice of the company and say what your corporate values are).

Your policies may not reflect the latest from EEOC and National Labor Relations Board (NLRB), and having policies that confirm both agencies can be problematic. This is especially true as it relates to off-duty conduct, which the EEOC views as fair game in analyzing a hostile workplace claim. While the NLRB is very skeptical about the ability of an employer to ever use an employer’s off-duty statements when analyzing workplace issues. Allegedly, these groups are getting better at finding some commonality between their viewpoints.

1. Eliminating barriers in recruiting and hiring.

• EEOC is expecting AI-related discrimination claims when it comes to recruiting and hiring where the employer is using any sort of machine learning or algorithms in its hiring process to either screen or source candidates.
• Advice is to make sure that you are seeing what your data says about your hiring trends before you find out in a lawsuit or a systemic investigation.

2. Protecting vulnerable workers and populations

• Identify any bias towards non-English speaking populations in hiring practices.
• Young women in the hospitality industry who are being harassed.

3. Retaliation and preventing systemic harassment

• Familiarize yourself with Title VII discrimination, which makes up the largest proportion of cases as it encompasses lots of protected classes and ADA retaliation claims.

4. Focused on multiple victim cases

5. Qualification standards with leave periods

Recommendations

Extend your policies past your handbook by training managers, maintaining a flexible nature when it comes to adjusting your policies, and staying proactive to avoid an EEOC claim, like conducting a self-audit on hiring trends to ensure compliance before a potential EEOC investigation.

Review company policies and how past issues have been handled to stay ahead of evolving workplace dynamics. Consider taking part in the EEOC mediation process when receiving a claim, as it can provide valuable insights.

The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter.