In December, President Joe Biden announced the release of its Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions, outlining the actions administrative agencies plan to issue in the near and long term.
Days later, the U.S. Equal Employment Opportunity Commission (EEOC) published its regulatory agenda for the first time in over two years, joining other labor agencies in outlining key rulemaking goals for 2024.
“[The regulatory agenda] is not only what the agency intends to do,” explained Stephen Paskoff, CEO of training company Employment Learning Innovations in Atlanta and a former EEOC litigator, “but also a heads up to employers to be aware of these priorities and make sure their practices don’t run afoul of potential risks which can lead to legal, talent development and brand image [issues].”
The agenda highlights the EEOC’s priorities, including proposed rule changes to the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, which requires federal agencies to publicly post data about equal employment opportunity class action complaints filed against them and information on discrimination filings.
Notably, the EEOC plans to finalize regulations to implement the Pregnant Workers Fairness Act (PWFA) in the coming days. Signed into law in December 2022, the PWFA requires employers to make reasonable changes to support worker limitations related to pregnancy, childbirth or related medical conditions—unless the accommodation will cause the company an undue hardship.
In August, the agency posted a notice of proposed rulemaking to implement the PWFA, equipped with examples of reasonable accommodations. The proposed regulations sparked outrage from some politicians over their expanded definition of medical conditions that could require employer accommodations, including for abortion.
“The PWFA is seen by many as a key piece of legislation that many in Congress, and the White House, will likely tout as an accomplishment on the campaign trail in 2024—increasing the need for the EEOC to finalize its regulations,” said Andrew Gordon, an attorney with the law firm Hinshaw & Culbertson LLP in Fort Lauderdale, Fla.
Agency Is Now a Democratic Majority
Since 2021, the EEOC had two Republican and two Democratic commissioners. The absence of a party majority led to disagreements over the timing of their updated sexual harassment guidance and employer wellness plan rules, which stalled the agency’s regulatory playbook.
The EEOC even failed to put out its regulatory agenda for the first time in nearly three decades when the Biden administration’s semi-annual cross-agency plan was published in June 2021 with the agency missing from the lineup.
However, after the July confirmation of EEOC Commissioner Kalpana Kotagal, a Democrat, the agency now comprises a Democratic majority, allowing the group to tackle issues that once led to a partisan deadlock, such as artificial intelligence bias, pay disclosures and LGBTQ+ rights.
Potential Areas of Litigation
The EEOC has recently made efforts to protect workers from discrimination related to pregnancy, artificial intelligence and long COVID, showing that the agency is anticipating claims arising in these areas, Paskoff explained.
AI has been a particular area of focus for the agency. In 2023, the EEOC has:
“It strikes me that the commission is recognizing that there are new opportunities for individuals to use technology and conditions, both existing and new, for new forms of discrimination,” he said. “Even as we move forward, we’re still addressing various forms of discrimination which have long been in place.”
Establishing common standards for behavior—and internal mechanisms for enforcing them—will not only help prevent legal risk but also reinforce the organization’s values such as respect and inclusion, enhancing the ability to attract, retain and develop talent, Paskoff added.
He encouraged HR professionals to prioritize the “how” behind cultivating fair and inclusive workplace environments to get the best organizational results.
Paskoff explained that the coming months present a “critical opportunity and call-to-action for organizations to consider the processes they’ll utilize in the new year to foster workplace cultures that get the best results.”