January 2, 2024
Every four years, the U.S. Equal Employment Opportunity Commission (EEOC) issues a four-year Strategic Enforcement Plan (SEP), designed to focus EEOC efforts on specific priorities. In Sept. 2023, the EEOC announced the SEP for fiscal years 2024-2028, which started Oct. 1. The EEOC relied on three underlying principles to develop the plan. First, the EEOC reinforced its commitment to a “strategic approach to enforcement,” including through the use of commissioner charges and directed investigations. Second, the EEOC recognized its responsibility to collaborate with other federal agencies, including the U.S. Department of Justice and the U.S. Department of Labor. Finally, the EEOC identified the importance of public accountability through “timely, consistent, and high-quality service to the public.”
EEOC identifies several disability-related focus points. Among the priorities the EEOC identified in the current SEP, several highlight the agency’s focus on the rights of qualified individuals with a disability within the workplace. These include:
- Online systems that are difficult for individuals with disabilities to access
- Protecting vulnerable populations, such as people with developmental, intellectual and mental health disabilities
- Qualification standards and inflexible policies or practices that discriminate against individuals with disabilities
- Pregnancy-related disabilities
- Discrimination associated with the long-term effects of the COVID-19 pandemic, including Long COVID
Online accessibility for hearing and visually impaired individuals. Online accessibility, the first SEP priority, relates to how individuals with disabilities interface with a website during the application process. For example, individuals with visual impairments may require a screen reader, and individuals with hearing loss may require captioning of audio content. Before deploying an online-only application process, employers may want to consider how best to accommodate accessibility challenges for applicants with disabilities. Employers may also consider reminding their hiring managers of their obligation to engage in the interactive process with applicants who require a reasonable accommodation.
Protection of vulnerable populations. The EEOC will also consider how to use government resources to protect vulnerable populations, including individuals with certain types of disabilities. In light of this focus, hiring managers may consider familiarizing themselves with the updated guidance and revisiting any potential obstacles within the hiring process for candidates with hearing disabilities. Additionally, organizations may consider training on the interactive process to ensure managers are well versed regarding their interactive process obligations. Trainings may also highlight the importance of identifying and accommodating less visible disabilities.
Scrutiny of inflexible policies. The EEOC is focused on standards and inflexible policies that discriminate against individuals with disabilities. Another anticipated target is point-based attendance policies, which fail to account for individuals who require accommodations based on qualified disabilities. Employers with either type of policy may consider revisiting them to ensure they allow for flexibility as required by the Americans with Disabilities Act (ADA). Likewise, employers may want to use caution before refusing to reinstate an individual who is not fully released to return to work but could otherwise perform the essential functions of their position with a reasonable accommodation.
Pregnancy-related disabilities and related commissioner charges. The SEP’s focus on pregnancy-related disabilities aligns with the Pregnant Workers Fairness Act, or PWFA, which became effective in June. The PWFA requires employers with at least 15 employees to provide reasonable accommodations for qualified applicants and employees who have limitations due to pregnancy, childbirth and related conditions. Covered employers may benefit from familiarizing themselves with the proposed regulations for the PWFA, released on Aug. 11, which differ in several key aspects from the ADA and may catch by surprise employers accustomed to focusing on ADA compliance.
Long-COVID discrimination. The EEOC issued updated guidance in fiscal year 2023 designed to help employers navigate a post-pandemic landscape populated with individuals who continue to experience COVID symptoms. This updated guidance, coupled with the SEP focus on discrimination associated with long COVID, indicates that the EEOC will continue to scrutinize employment decisions related to individuals with long COVID. This scrutiny is not surprising, given that more than 6,000 individuals filed charges of discrimination related to COVID-19 during the pandemic.
Key takeaways leading into 2024. With an SEP premised on enforcement and accountability to the public, and a more than 70 percent increase in ADA litigation by the EEOC in the last fiscal year, employers should anticipate heightened scrutiny from the agency on their disability policies and procedures over the next four years. They may consider training their managers, supervisors and employees accordingly. Also of note, the EEOC opted to file litigation against employers of various sizes, highlighting the fact that smaller employers are not immune from EEOC scrutiny. Finally, with the start of a new year, employers in all industries and of all sizes may consider auditing their record practices to ensure medical records are maintained separately, as well as reviewing their policies and training materials to ensure compliance with the ADA and the new PWFA regulations.
— Stacy Bunck is the former office managing shareholder in Ogletree Deakins’ Kansas City office, with extensive experience in employment-related disputes in various forums throughout the Midwest. She has experience defending allegations of discrimination, retaliation, harassment, and wrongful discharge, and defending FLSA collective actions.
A version of this article was previously published in Law360.
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