In Focus at the EEOC: Preserving Legal System Access


January 25, 2024

Photograph of Aniko Schwarcz

By Aniko Schwarcz

Every five years, the U.S. Equal Employment Opportunity Commission sets forth a strategic enforcement plan, or SEP, setting priorities that inform how it deploys its limited resources.

The most recent iteration of this plan was published on Sept. 21, 2023, for the purpose of focusing and coordinating the commission’s work over the course of multiple years. Its final version is the product of rigorous public engagement, including several dedicated public listening sessions featuring stakeholders with varied experience and perspectives on the issues that affect the EEOC’s mandate to enforce federal anti-discrimination laws.

The SEP is distinct from the commission’s strategic plan. Where the latter outlines operations and processes the agency will implement to reach its goals, the SEP names its highest-priority subjects for enforcement.

The commission’s framing of these priorities — the way it places its mandate to combat workplace discrimination in the context of broader social movements and the fight for justice and equality — can offer insight into how commission leadership is thinking about resource allocation and enforcement priorities over the covered period.

Among the priorities highlighted in this SEP are a set dedicated to preserving access to the legal system. The issues specifically enumerated in this section would “limit substantive rights, discourage or prohibit individuals from exercising their rights under employment discrimination statutes,” or impede the commission’s enforcement work.

Preserving access to the legal system was part of the EEOC’s first SEP, covering fiscal years 2013-2016, and it appeared again as a subject matter priority in the 2017-2021 version. While its inclusion in the latest SEP is not novel, the composition of the EEOC changed prior to this iteration of the plan.

With the confirmation of Democratic-appointee Commissioner Kalpana Kotagal in August 2023, and confirmation of Chair Charlotte Burrows for a new term in November 2023, the EEOC will have a Democratic majority through at least the remainder of the Biden administration. Additionally, a new general counsel, Karla Gilbride was confirmed in October 2023 to helm the commission’s litigation strategy.

With experience as litigators and advocates, Kotagal and Gilbride know how anti-discrimination laws work in practice; both add their own understanding and knowledge of the subject matter priorities to the existing commission members’ expertise.

We can glean some insights on several of the issues highlighted in the plan from prior public commentary by the commission’s leadership — in particular from these two new leaders. A review of this background is below and should contribute to an overall understanding of where and how the agency will approach select policies and practices identified in the SEP as they relate to access to justice.

This article examines the EEOC SEP’s three highest priorities dedicated to preserving access to the legal system:

  • Unlawful, Unenforceable or Improper Arbitration Agreements
  • Employers’ Failure to Keep Data and Records Required by Statute or EEOC Regulations
  • Retaliatory Practices That Detrimentally Affect Employees

Read In Focus at the EEOC: Preserving Legal System Access.