Equal Employment Opportunity Law—Past, Present, and Future: Key Takeaways from the 2024 Annual ABA Conference

04.25.2024

The American Bar Association Labor and Employment Section held its annual Equal Employment Opportunity Law Conference in Boston from March 19 to March 22, 2024. Over 200 attendees took part in the four-day conference. Government agency representatives, labor and employment law attorneys representing both employers and employees, in-house counsel from companies across industries, union representatives, consultants, and law students provided a myriad of perspectives from the US, Canada, the UK, and Australia.

The conference provided a platform for attendees to delve into various aspects of EEO law, including discrimination, harassment, diversity, inclusion, and compliance. The conference held particular significance this year as it commemorated the 60^th anniversary of Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability and genetic information (including family medical history). With the landscape of employment law constantly evolving, participants engaged in dynamic discussions about the purpose of historical laws and court decisions, the current landscape, and the potential impact of various impending decisions on the design of employment law moving forward.

While the topics of conversation ranged from worker classification, immigration law, and surveillance and privilege, some of the notable central themes of discussion were: 1) risks of artificial intelligence and the emerging laws on its regulation, 2) affirmative action and DEIA, and 3) pay equity. The following were key takeaways from these discussions:

1. Artificial Intelligence (AI) and its Impact on Equal Employment Law: With increasing reliance on AI, lawmakers are finding the need to reshape the existing legal landscape to uphold the longstanding objectives of equal employment opportunities. As per the 2023-24 SGRM State of the Workplace Report, “by 2025, half of HR departments could be using AI” with notable use in talent acquisition, employee training and development, and performance management.^[1] In recruiting, interviewing, and hiring, employers use AI to generate job descriptions, screen job applications, and communicate with applicants. In supporting learning and development, AI is used to create content, develop personalized opportunities for employees, and track their learning progress.  Finally, in performance management, AI is used to help managers provide more comprehensive feedback and facilitate goal setting for employees.

While discussing the risks associated with AI, the panel noted that HR personnel are “deployers of AI and not developers of AI.” This differentiation in roles has resulted in a lack of transparency for employers regarding the mechanics and decision-making training of AI, including steps taken to protect discrimination or bias.  Although there aren't any federal laws or regulations tailored specifically to AI in the workplace at present, the existing legal framework, such as Title VII, remains applicable to all employment practices, even those incorporating AI. Further, agencies at various levels have issued guidelines for employers to follow. For example, in 2021, the EEOC launched the Artificial Intelligence and Algorithmic Fairness Initiative to ensure that various tech tools used in employment decisions comply with federal discrimination laws.^[2] Similarly, New York City’s latest Automated Employment Decision Tool (AEDT) Law mandates independent audits of AI systems used in employment decisions in New York City and the publication of the results from these audits.

Even though there were lengthy discussions regarding AI, there was little discussion on its advantages. Despite all the associated risks, AI can be used to write job descriptions that are more inclusive, cast a wider net to include more applicants, scan through large sets of resumes which would otherwise go unnoticed, and even reach out to passive candidates. Given these benefits, the transparent and closely monitored use of AI can help foster DEIA goals and the growth and development of both employers and employees.

2. Affirmative Action and Diversity, Equality, Inclusion, and Accessibility (DEIA): Affirmative action^[3] was introduced in the early 1960s and was heavily influenced by the affirmative action program adopted by India to address its problem of the caste system.^[4] The purpose of affirmative action is to ensure equal employment for applicants and employees in recruitment, selection, advancement, and every other term and privilege associated with employment, without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or veteran status.^[5]

Fast forwarding to 2023, in a recent matter, Students for Fair Admissions v. Harvard, UNC, the Supreme Court ruled that race-based affirmative action admission policies of Harvard University and the University of North Carolina that considered race as a factor for admissions were in violation of the Fourteenth Amendment of the U.S. Constitution and Title VI of the Civil Rights Act of 1964.^[6] This ruling sparked nationwide debate regarding the implications of the decision on employers’ DEIA efforts. Opining on this debate, U.S. Equal Employment Opportunity Commission Vice Chair Jocelyn Samuels said “…there is nothing about the SFFA decision that applies to the vast majority of DEIA programs in employment for several reasons.”^[7] She added that unlike the SFFA v. Harvard/UNC case, which was an education case and focused on explicit consideration of race as a factor in decision-making of an individual student’s admission, the vast majority of DEIA initiatives do not consider race or sex or any other protected characteristic in the context of an individual decision. Expanding on the differences, she said that DEIAs are holistic efforts to ensure that an employer eliminates barriers to fair and proportional representation of different groups in the workplace, to increase inclusivity in workplaces, and to ensure that an employer is being proactive in evaluating whether there are discriminatory practices that are limiting equal employment opportunities in the workplace.

3. Pay Equity: During a lunchtime panel, experts discussed pay equity in the current legal landscape. The panelists highlighted the difference between “pay gap,” the difference in average pay of protected and non-protected groups, and “pay equity,” compensating people performing substantially similar work equally.  Even though an employer can achieve pay equity, pay gaps across different groups can still exist.  In other words, even if employees engaged in substantially similar tasks receive equal compensation, there can still be notable discrepancies in the overall average pay among different demographic groups. This situation may arise due to an uneven distribution of the workforce across various job categories, with certain groups being more likely to occupy higher-paying roles.

The panel also emphasized pay transparency and pay data, and analysis reporting. Pay transparency laws, pioneered by Colorado, require disclosure of pay ranges in job postings.  While there is no explicit law on the width of ranges, very broad pay ranges have been met with criticism, resulting in the narrowing of reported ranges over time.  Similarly, some states, such as California and Illinois, now require employers to report pay data and analyses, detailing average pay for each job category for various groups and signaling compliance with the Equal Pay Act.

Finally, the panel discussed some best practices that can be adopted by employers to avoid litigation.  Suggestions included having a well-defined job structure with clear job duties and responsibilities, having a pre-determined level, grade, or band associated with each posting to avoid any initial placement biases, publishing pre-set base pay ranges, communicating the factors that determine variable pay consistently, adopting a good record-keeping practice, and conducting regular internal audits and analyses to ensure equity across all employment practices at the firm.^[8]

Besides the three primary subjects of discourse, there was also an important dialogue with Hon. Charlotte A. Burrows, present Chair of EEOC, on Title VII suits and whether plaintiffs bear the burden of showing “materially adverse action” and the economic or other “objectively tangible harm” caused by the action.^[9] Additionally, discrimination in employment opportunities based on the size of an employee, regular and effective performance evaluations and their significance for managerial and litigation success, class action lawsuits based on use of prior pay in determining starting pay and initial placement, and the type of lawsuits that lawyers anticipate in the near future were some of the other noteworthy topics of discussion.^[10] Overall, the conference provided a platform for discussions, presentations, and exchanges of ideas related to EEOC matters, including legal updates, best practices, and emerging issues in the field of employment law. It was successful in highlighting the advantages of DEIA, fostering collaboration, sharing knowledge, and promoting understanding among legal professionals, policymakers, and other stakeholders involved in addressing discrimination and promoting equal opportunities in the workplace, and reaffirming the legal community's commitment to upholding the principles of equal opportunity and fairness for all employees.

CITATIONS

[1] Society for Human Resource Management (SHRM), "2024 Talent Trends Survey: Artificial Intelligence Findings," accessed April 09, 2024, https://shrm-res.cloudinary.com/image/upload/AI/2024-Talent-Trends-Survey_Artificial-Intelligence-Findings.pdf.

[2] U.S. Equal Employment Opportunity Commission (EEOC), "Artificial Intelligence and Algorithmic Fairness Initiative," accessed April 09, 2024, https://www.eeoc.gov/ai.

[3] According to the Executive Order signed by President John F. Kennedy, government contractors are required to take affirmative action.  The federal government, however, does not require non-contractors to participate in affirmative action programs.

[4] To read more about caste as a potential protected characteristic, see Sama Agrawal, “Caste—A New Protected Category in Employment?,” Edgeworth Insights, January 11, 2024, accessed April 24, 2024, https://www.edgewortheconomics.com/insight-caste-protected-employment-category.

[5] U.S. Department of Labor (DOL), Office of Federal Contract Compliance Programs (OFCCP), "Affirmative Action Frequently Asked Questions," accessed April 09, 2024, https://www.dol.gov/agencies/ofccp/faqs/AAFAQs.

[6] Supreme Court of the United States, "Syllabus: Students for Fair Admissions, Inc v. President and Fellows of Harvard College," accessed April 09, 2024, https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf.

[7] Vin Gurrieri, "EEOC Official Flags ‘Overblown’ Takes On Admission Ruling," Law360, March 19, 2024, accessed April 09, 2024, https://www.law360.com/articles/1815530/eeoc-official-flags-overblown-takes-on-admissions-ruling.

[8] Erin M. Connell, Kayla D. Grundy, and Necia B. Hobbes, “Pay Transparency Laws: Impact, Issues, & Insights,” American Bar Association (ABA), March 2024, accessed April 09, 2024, https://www.americanbar.org/content/dam/aba/events/labor_law/eeo/papers/2024/pay-transparency.pdf.

[9] Since the conference, on April 17, 2024, the U.S. Supreme Court, in a unanimous decision in Muldrow v. St. Louis, ruled that the language of Title VII does not require the harm to be “significant.” Supreme Court of the United States, "Syllabus: Muldrow v. City of St. Louis, Missouri et al.," accessed April 24, 2024, https://www.supremecourt.gov/opinions/23pdf/22-193_q86b.pdf.

[10] The upcoming Edgeworth Insights’ blog posts will feature in-depth discussions on some of these topics.