EEOC Announces a Draft Strategic Enforcement Plan for 2023—2027

On 10 January 2023, the US Equal Employment Opportunity Commission, (EEOC) which was established by the Civil Rights Act of 1964, published its draft for a Strategic Enforcement Plan (SEP) to run between the 2023 and 2027 fiscal years. As the primary body for enforcing non-discrimination employment law in the US, the EEOC periodically launches SEPs to direct the agency’s work over a certain period.

Informed by a stakeholder engagement process and driven by recent events that have highlighted “systemic racism”, the 2023-2027 Plan is constructed around three principles, which have been adapted from those underlying the previous two SEPs:

• A targeted approach that limits the allocation of resources and attention to the specific priorities outlined in the SEP.
• An integrated approach spearheaded by a national effort that is nuanced to reflect regional or local differences in law and enforcement and ensures that the public, private, and federal sectors involved in enforcement are coordinated and consistent.  The SEP also emphasises the need for government departments to share information and the responsibility for enforcing equal opportunity in the workplace.
• ‍Accountability to the public for the use and allocation of its resources by taking ownership of the level of service provided using the resources available to the EEOC.

Under each of these principles are a series of priorities that will shape the EEOC’s actions over the next 4 years, with the comment period for the draft open until 9 February 2023.

Artificial Intelligence as an SEP Priority

Of particular interest in the draft SEP is the emphasis on regulating AI and automated employment tools. Under the actions outlined under the first principle, the EEOC will target automated systems, including those using AI or machine learning, used for the targeting of job adverts, recruitment of applicants, and making of hiring decisions to ensure that they do not adversely impact protected groups. Efforts will also target screening tools or requirements that have a disproportionate impact on protected subgroups, including automated tools and those using AI. There will also be a specific focus on technology-related employment discrimination, with algorithmic tools and those based on machine learning or AI being specifically targeted under this initiative.

The EEOCs Ongoing Efforts to Regulate AI-Driven Talent Management Tools

As well as the initiatives outlined in the 2023-2027 SEP, the EEOC has demonstrated its commitment to addressing the discrimination that can result from automated talent management tools elsewhere. Recently, it has released guidance on the potential implications AI-driven recruitment tools on the Americans with Disabilities Act and launched an Artificial Intelligence and Algorithmic Fairness Initiative to examine the impact of AI on employment decisions. Taking more extreme action in May 2022, the EEOC sued the iTutorGroup for age discrimination due to their use of software to automatically reject older applicants, highlighting the importance the EEOC is placing on regulation AI-related discrimination.

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