The Guidance provides employers with an opportunity to revise their policies and protocols to better reflect the current legal landscape and the evolution of digital technology. The Guidance also highlights the EEOC’s emphasis on enforcing Title VII’s prohibition of harassment based on sexual orientation and gender identity. Employers should review their policies and practices to ensure they adequately protect against, and provide avenues to report, potential harassment that takes place virtually. Likewise, employers may wish to consider incorporating examples of harassment given by the EEOC when implementing harassment prevention measures. F. Looking Ahead To Fiscal Year 2024 Moving into FY 2024, the EEOC ’ s budget includes a $26.069 million increase from 2023, and focuses on six key areas including advancing racial justice and combatting systemic discrimination on all protected bases; protecting pay equity; supporting diversity, equity, inclusion, and accessibility (DEIA); addressing the use of artificial intelligence in employment decisions; and preventing unlawful retaliation. The EEOC also announced goals for its own Diversity, Equity, Inclusion and Accessibility (DEIA) program where it seeks to achieve four goals, including workplace diversity, employee equity, inclusive practices, and accessibility. Additionally, the EEOC continues to polish its FY 2021 software initiatives addressing artificial intelligence, machine learning, and other emerging technologies in continued efforts to provide guidance. Finally, the joint anti-retaliation initiative among the EEOC, the U.S. Department of Labor, and the National Labor Relations Board will continue to address retaliation in American workplaces. III. Key Rulings In EEOC-Initiated Litigation A. EEOC Cases Under The ADA Enforcement of the Americans with Disabilities Act (ADA) remains a core priority of the Commission. In 2023, it pursued a myriad of ADA-related lawsuits. One of the most significant lawsuits brought by the commission is EEOC v. Army Sustainment, LLC , 2023 U.S. Dist. LEXIS 171406 (M.D. Ala. Sept. 26, 2023), an enforcement action against the defendant Army Sustainment LLC a/k/a Army Fleet Support (AFS), a helicopter maintenance contractor which, from 2003 to 2018, employed aircraft mechanicals, technicians, and other aviation specialists at Fort Novosel (previously known as Fort Rucker). AFS implemented a drug testing policy (the “Policy”) in 2012 requiring employees in “safety-sensitive positions” to submit to drug testing for opioids, amphetamines, and benzodiazepines. Id. at *2. Individuals who were legally prescribed these medications were cleared to work so long as they agreed not to take their medication within 6-to-8 hours before their shift. Id. at *4. In 2016, AFS eliminated the “6-to-8-hour rule,” and instead required employees to undergo a medical evaluation “to determine whether an employee ’ s prescription medication was appropriate for use during work hours.” Id. at *2. As part of the medical evaluation, the
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© Duane Morris LLP 2024
The EEOC Litigation Review – 2024
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