Hunton Employment & Labor Perspectives

Last year, the EEOC revealed its Strategic Enforcement Plan (“SEP”) for Fiscal Years 2024-2028.  In the SEP, the EEOC stated that a subject matter priority was “the continued underrepresentation of women and workers of color in certain industries and sectors.”  One such industry focus is on workers in STEM (Science, Technology, Engineering, Mathematics) fields. 

It appears the EEOC is taking tangible steps towards this enforcement initiative. Last month, the agency released a report titled, “High Tech, Low Inclusion: Diversity in the High Tech Workforce and Sector 2014 – 2022.”  In the comprehensive report, the EEOC examined extensive workforce data, and came to the conclusion that there is underrepresentation of women and persons of color, particularly Black and Hispanic individuals, in STEM-focused industries and sectors.

The EEOC views these trends as concerning, and indicated that it believes it must make a concerted effort to “combat discriminatory barriers in the high tech workforce and high tech sector and achieve equal opportunity for all workers.”  Those efforts, the EEOC states, will include industry outreach, technical assistance manuals, investigation of charges of discrimination, and litigation.

The Report’s Details

For purposes of the report, the EEOC defines “high tech workforce” as workers in 56 science, technology, engineering, and mathematics (STEM) occupations regardless of industry.  Relatedly, the EEOC defines the term “high tech sector” as any industry where there is a high concentration of high tech workers (at least 20% of the workforce), but also includes workers in non-STEM occupations like administrative workers and sales workers.  Examples of these industries are computer systems design, data processing, aerospace products, computer equipment manufacturing, telecommunications, architectural and engineering services, as well as national security and international affairs.

Within the high tech workforce, the EEOC reports that 40.1% identify as workers of color, but Black and Hispanic workers were underrepresented compared to their participation in the broader U.S. workforce.  Specifically, the EEOC states that in 2022:

• Hispanic workers made up 18.7% of the total U.S. workforce, but only 9.9% of the high tech workforce;
• Black workers made up 11.6% of the total U.S. workforce, but only 7.4% of the high tech workforce;
• By contrast, Asian workers made up just 6.5% of the total U.S. workforce but comprised 18.1% of the high tech workforce, and Caucasian workers made up 58.4% of the total U.S. workforce in 2022 and comprised 59.9% of the high tech workforce.

According to the EEOC, the data also showed that women were substantially underrepresented in the high tech workforce.  In 2022, the EEOC reports that women held less than a quarter (22.6%) of the high tech workforce jobs – far less than their representation in the total U.S. workforce (47.3%). And within higher-paying high tech jobs within the high tech sector, the underrepresentation grew greater (19.4%).

What Does this Mean for STEM Employers?

Employers in STEM industries should take note of the EEOC’s focus.  While the report does not place blame on the industry or explore potential causal connections, it is clear that the EEOC believes that the industry needs to become more cognizant of these disparities.  The EEOC has repeatedly indicated that it will pursue systemic discrimination claims in court, which sometimes rely on publicly available data and reports.  By way of example, class action complaints sometimes use workforce data (such as underrepresentation) to present allegations of disparate impact that may be plausible enough to overcome a motion to dismiss under Rule 12(b)(6).  Thus, the EEOC’s examination and summation of this data may not be limited to educational purposes, but could also be tested in the litigation arena. 

The EEOC report notes that the Bureau of Labor Statistics projects that the STEM workforce will continue to grow at three times the rate of the total U.S. workforce through 2032.  Because STEM jobs are often higher-paying jobs and tend to be more stable, the EEOC’s focus on the industry will no doubt continue into the future.  STEM employers should be mindful of the EEOC’s initiatives, seek counsel to perform workforce audits, and ensure that the use of any hiring tools, such as resume screening tools, are not having a disparate impact on certain categories of job applicants.  Taking such steps now will help insulate employers from the EEOC’s crosshairs.