Seyfarth Synopsis: The Equal Employment Opportunity Commission ("EEOC") has issued a report that should have high tech employers on high alert. According to the EEOC's findings, analysis, and enforcement information, there are barriers to equal employment for high tech jobs, which the Agency intends to address through heightened enforcement efforts. It is important for all employers – not just high tech companies – to understand the EEOC's report and be mindful of the agency's strategic position it signals to avoid becoming the target of the EEOC's enforcement efforts.
On September 11, 2024, the EEOC issued a report entitled High Tech, Low Inclusion: Diversity in the High Tech Workforce and Sector 2014-2022, which analyzes "demographic disparities for workers in 56 science, technology, engineering, and mathematics (STEM) occupations and the industries employing them." In addition to providing an assessment of the current state of diversity in these fields, the report also discusses the most common discrimination charges filed by high tech sector workers with the EEOC.
The report follows on the EEOC's Strategic Enforcement Plan ("SEP") for fiscal years 2024-2028, which stated, in part, that "[t]he continued underrepresentation of women and workers of color in certain industries and sectors (for example, construction and manufacturing, high tech, STEM, and finance, among others), are also areas of particular concern, especially in industries that benefit from substantial federal investment." (We've written previously about the proposed and final SEP.)
EEOC Findings of Underrepresentation of Certain Workers in High Tech Jobs
The report lists numerous findings that show, according to the EEOC, that the underrepresentation of Black, Hispanic, female, and older workers in the high-tech industry is due to "discriminatory barriers," which the EEOC intends to address by proactively investigating charges of discrimination and pursuing litigation. The EEOC also plans to provide technical assistance and engage in extensive education and outreach efforts aimed at getting employers to comply with laws enforced by the EEOC.
The EEOC's specific findings include:
- Female, Black, and Hispanic workers remained substantially underrepresented in the high tech workforce and sector. According to the EEOC, between 2005 and 2022 there was very little change in the representation of Black workers and virtually no change in the representation of female workers occurred in the high tech workforce.
- Black, Hispanic and Asian workers were purportedly underrepresented in managerial positions compared to their participation in the high tech workforce overall.
- While women are nearly half of the total U.S. workforce, the EEOC reports that they were just 22.6% of the high tech workforce in all industries, and only 4% of the high tech workforce in the high tech sector.
- The EEOC suggests that the high tech workforce is generally younger than the total U.S. workforce; 40.8% of the high tech workforce are ages 25 to 39, but only 33.1% of the overall workforce. Workers over age 40 in the high tech workforce reportedly lost ground between 2014 and 2022, declining from 55.9% to 52.1%.
EEOC Charge Filings in the High Tech Sector
The report provides charge filing information from 2022 (the most recent year for which the EEOC has reported data). The data show that the four most common types of charges filed in the high tech sector are: (i) retaliation; (ii) disability discrimination; (iii) race discrimination; and (iv) sex discrimination. Further, age, pay, and genetic information discrimination charges are more prevalent in the high-tech sector than in other sectors, with age discrimination charges representing the greatest difference in filings as compared to other sectors. Employers are likely to see surge in enforcement action by the EEOC in these areas, particularly with respect to Black, Hispanic, female, and older workers.
Implications for Employers
Employers in the high tech sector and with high tech employees must remain on high alert when it comes to the EEOC. The EEOC announced in the SEP that it intended to focus its enforcement efforts on this sector, and this report demonstrates that the EEOC is doing just that. As such, employers in the high tech industry and with high tech employees should be familiar with this report, and the EEOC's promise to pursue large scale enforcement efforts in this space. Employers in all industries should also mark the take-away that the EEOC continues its focus on systemic hiring and recruiting enforcement in a wide variety of sectors.
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