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EEOC employer lawsuits could increase in number, reach

The EEOC is on the verge of gaining a Democratic majority, something that might soon increase the scope of its lawsuits, such as how AI is used in hiring.

In September, the U.S. Equal Employment Opportunity Commission filed more than 40 lawsuits -- many involving women -- against employers, alleging sex and race discrimination in the workplace. The federal fiscal year ended Sept. 30, and the number of lawsuits filed that month might represent almost half of the lawsuits the EEOC filed for the year.

Among the allegations is a complaint that women aren't getting a fair opportunity to drive trucks at a freight company in Baldwinsville, N.Y.; another claims a Black woman was underpaid compared with colleagues performing similar work at a company in Cockeysville, Md. A third lawsuit alleges that one woman born with HIV was forced to disclose her medical status and ultimately lost her job at a Tractor Supply Co. store in Hattiesburg, Miss.

These types of workplace discrimination and retaliation lawsuits are the bread and butter of the EEOC. Still, there's speculation that more ambitious cases into new areas, including the use of AI in employment, are on the horizon. It is rooted in the fact that the commission is increasing its staff and is on the cusp of gaining more political power.

President Joe Biden's administration is increasing the EEOC's enforcement capacity. The agency had 3,300 employees in 1980, which declined to 1,939 by 2020, the last year of former President Donald Trump's administration. The agency expects to reach 2,300 employees this year as part of its self-described "rebuilding." More litigators could mean more EEOC lawsuits against employers.

A second significant change on tap for 2023 is a Democratic majority on the EEOC. The Republicans currently have a 3-2 majority, which will end if the U.S. Senate confirms Biden's nominee, Kalpana Kotagal, a civil rights and employment attorney. Kotagal would replace Janet Dhillon, a Republican member whose term expired in July, but the nomination is getting opposition from Republicans who see her as a labor activist and question her impartiality.

EEOC unleashed

A Democratic majority on the commission could unleash the EEOC to pursue new areas, said Chris Moran, a partner at Troutman Pepper Hamilton Sanders.

There is some thought that they are stockpiling cases, waiting for a more favorable atmosphere.
Chris MoranPartner, Troutman Pepper Hamilton Sanders

"There is some thought that they are stockpiling cases, waiting for a more favorable atmosphere," he said.

Outgoing member Dhillon can either serve until she's replaced or the year ends, leaving the commission potentially deadlocked with two Republicans and two Democrats.

The EEOC commission Republicans might be less interested in expanding the EEOC's reach into "areas of liability against employers in ways that haven't been done thus far," Moran said. But for now, the number of lawsuits the EEOC is filing is well short of its historic averages.

Whether an empowered EEOC will take up an AI case, such as challenging HR tools used in selecting candidates, is unknown. But the EEOC has made its concerns known about AI's ability to remove bias from hiring decisions. Charlotte Burrows, former chair of the EEOC, said that there are a lot of "snake oil salespeople" in the AI area.

Although official numbers aren't available, the EEOC could close its 2022 fiscal year on Sept. 30 with less than 90 lawsuits, based on a count of agency lawsuit announcements. Some employment attorneys see the high volume of EEOC lawsuits in September as a way for the agency to meet year-end goals.

Lawsuit counts trending down

In fiscal year 2021, the agency filed 124 lawsuits; in 2020, it was 97. But in 2005, the EEOC filed 416 lawsuits and continued to file more than 300 annually until 2010.

Aimee Gibbs, an employment attorney at Dickinson Wright in Ann Arbor, Mich., sees more enforcement activity ahead by the EEOC and warns employers to take action now.

"Employers should be proactive in preventing discrimination in the workforce," Gibbs said. "It's a good time for all employers to revisit their anti-harassment and anti-discrimination training."

In one EEOC lawsuit, Gypsum Express Ltd. in Baldwinsville, N.Y., is being sued for discriminating against female applicants for flatbed driver positions. The lawsuit alleges that one company official said "words to the effect of he did not want to hire female drivers because, 'They just don't work out.'"

In response to a query from TechTarget Editorial, Gypsum said, "While we do not comment on the details of pending litigation, Gypsum Express has been dealing with this EEOC investigation for the last five years and has fully cooperated with the EEOC's investigation. Based on the information the company has presented in response to this investigation, we are disappointed that the commission has decided to file this lawsuit. The company has always been an equal opportunity employer, and we look forward to presenting our defense in court."

Similar work, unsimilar pay allegations

Sinclair Broadcast Group Inc. in Cockeysville, Md., is being sued for discrimination involving a Black woman who was allegedly paid less than white workers for similar IT work.

"The employee was required to perform higher-level tasks and to assume increased responsibility, but she was not offered a promotion or pay increases commensurate with the elevated roles and responsibilities," the lawsuit alleged. "Defendant treated similarly situated workers who are not Black more favorably."

In response, the company said in a statement that "it is Sinclair's consistently applied policy and practice to meet and/or exceed its legal and ethical obligations as it pertains to the treatment of its employees. Sinclair will demonstrate that its treatment of the plaintiff, in this case, was consistent with that principle."

In another case, Tractor Supply Co. in Hattiesburg, Miss., is being sued for disability discrimination over the treatment of a woman with HIV. According to the lawsuit, the employee faced a "hostile work environment" based on "her disability or perceived disability." It alleges she was terminated "as retaliation for her complaints and her filing of an EEOC charge." A spokeswoman said the company doesn't comment on pending lawsuits.

Many of the recently filed EEOC lawsuits deal with sex discrimination and harassment against women, as well as pay issues related to women, said Andrea Johnson, an employment attorney at Kane Russell Coleman Logan in Houston.

Issues like these "are very much top of mind today," Johnson said. But the lawsuits also focus on nontraditional work for women, which might be one way that the administration is sending a message to employers, she said.

It is telling them to "be on your toes, do the right thing," she said.

Patrick Thibodeau covers HCM and ERP technologies for TechTarget Editorial. He's worked for more than two decades as an enterprise IT reporter.

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