Hearings for EEOC Nominees Highlight Potential Shifts in EEOC Policy and Agenda

EEOC PictureOn September 19, 2017, the Senate Health, Education, Labor and Pensions (“HELP”) Committee held confirmation hearings for President Trump’s nominees to fill the two vacant Equal Employment Opportunity Commission (“EEOC” or “Commission”) positions – Janet Dhillon and Daniel Gade.  While a new administration almost always signals a policy shift, change typically occurs over a prolonged period of time.  However, given the immediate changes implemented under the Congressional Review Act, efforts to dismantle Obama-era regulations, and prompt action to curb the Affordable Care Act and immigration policy, industry can likely expect swift policy changes implemented throughout government agencies, including the EEOC.

The EEOC is set-up for perhaps the one of the largest policy shifts that business has seen in decades.  The foundation for such changes lies in the two current vacancies in the Commission.  President Trump’s nominations of Dhillon and Gade will change the makeup of the EEOC leadership to three Republican members and two Democratic members.  Additionally, the perspective that these two nominees will bring to the EEOC is likely to shift the agency’s priorities and help ease regulatory burdens on employers.

The Nominees

Janet Dhillon is the former General Counsel at Burlington Stores Inc. who has a long history of supporting Republican candidates for elected office, including John McCain and Ted Cruz.  Unlike the current Commissioners, Dhillon will bring a unique perspective that will be welcomed by employers.  Her experience as an in-house lawyer at a large company provides the backdrop for a more employer-friendly stance on workplace issues.

Gade is also an intriguing pick to fill the other vacant position at the EEOC.  Gade is a graduate of the United States Military Academy at West Point who served in Iraq.  He was decorated for valor with two purple hearts and most recently served as an assistant professor at West Point.  If confirmed, Gade will be the only non-lawyer on the Commission.  Gade has taken a hard-nosed stance on disability benefits for veterans, and what he believes is a perverse incentive for them to rejoin the workforce.  Although he would be the only Commissioner without any experience enforcing anti-discrimination laws, his views suggest that he would make a concerted effort to address disability claims, especially those concerning veterans.  In FY 2016 alone, disability discrimination charges accounted for approximately 31% of all charges received by the EEOC, which marks an 11% increase since 2001.

Mission to Decrease Burden on Employers

The nominations of Dhillon and Gade certainly reflect President Trump’s firm commitment to decreasing burdens on employers.  Since taking office, President Trump has been adamant on his mission to cut regulation on employers.  President Trump has already reversed one Obama-era EEOC initiative designed to further regulate the workplace.  Specifically, on August 29, 2017, the OMB’s Office of Information and Regulatory Affairs issued a memorandum to the EEOC informing the agency that the revised 2016 pay data requirements were being stayed immediately and directing the agency to submit a new information collection package for the EEO-1 form for OMB’s review.

As a consequence, according to Acting Chair Victoria Lipnic, the earlier approved EEO-1 form remains in effect, and employers with 100 or more employees and federal contractors will be required to submit only the data required before the September 2016 EEO-1 report changes.  The deadline to submit these EEO-1 forms remains March 17, 2018.

Increase in Mediation

Both Dhillon and Gade commented in their opening remarks that they are committed to addressing the substantial backlog of charges currently before the EEOC.  Gade highlighted that his first priority, if confirmed, would be to address the backlog of charges being investigated by the EEOC.  Dhillon commented that it is “a sad reality that too often, justice delayed is justice denied[,]” and that conciliation and education is “critically important to the EEOC’s mission.”

If both candidates are confirmed, the drive to address the existing backlog and pending matters quickly will likely signal an increased emphasis on mediation.  Parties may be under shortened deadlines to submit information, produce documents and supporting evidence, and there will likely be less cases pursued by the EEOC unless it has solid and substantial grounds to bring a case.

Despite the number of large cases brought by the EEOC during the Obama administration, mediation actually accounted for a majority and benefits accumulated for aggrieved parties over the past several years.  The FY 2018 EEOC budget justification echoes this trend – highlighting its increased efforts to focus on mediation, conciliation, and employer outreach, as opposed to litigation, which is listed as the final EEOC priority for FY 2018:

EEOC’s priorities for FY 2018 are to make critical investments needed to make the Commission an agency focused on addressing the needs and challenges of the workplace of the future. As jobs for Americans are increased under this Administration, we as an agency will seek to increase equality of employment opportunity in the workplace through enhanced outreach and education; voluntary compliance efforts; high quality investigations; early and voluntary resolution of matters (including mediation and quality conciliations); and strategic litigation to enforce the laws under our jurisdiction.

While the EEOC’s strategic objective to reduce the backlog may mean more involvement initially, the long-term effect of this policy shift will decrease burdens on employers and facilitate a less adversarial relationship with the EEOC.

Potential Shift in Title VII Policy on LGBT Discrimination

Another issue that employers are watching closely, due largely to the current uncertainty throughout the legal system, is LGBT protections under Title VII.  Under the Obama Administration, the EEOC took the position that sexual orientation and gender identity were a protected category under Title VII.

The new Administration has already made several moves within the first 8 months of taking office to reverse these protections.  Notably, within the first month of the new Administration, in February 2017, President Trump withdrew Obama-era protections for transgender students in public schools that called for them to be permitted to use bathrooms and facilities corresponding with their gender identity.  The backlash that arose from this policy change led the Department of Education to issue an internal memo directing attorneys to continue to examine discrimination claims brought by transgender students and not automatically reject them due to this change in policy.  More recently, on August 25, 2017 President Trump issued a memorandum to the Secretary of Defense and Secretary of Homeland Security banning transgender individuals from serving in the United States military.

The Administration’s shift in policy with respect to sexual orientation and transgender protections will similarly make its way to the forefront of issues needed to be addressed by the EEOC sooner rather than later.  With the anticipated shift in the makeup of the EEOC leadership, the EEOC is more likely to reverse the Obama-era stance on sexual orientation and transgender protections.  This would be a momentous change in the employment law context, as former Commissioner Jenny Yang labeled the Commission’s work on sexual orientation discrimination one of the greatest successes of her career at the EEOC.

During the confirmation hearings, neither Dhillon nor Gade would confirm that they would interpret Title VII as protecting LGBT workers.  When questioned during the hearing, Dhillon’s comments suggested that she may be ready to overturn findings of LGBT protections on the basis the that the U.S. government should speak with one voice on the issue.  When questioned by Sen. Patty Murray (D-Wash.), the top Democrat on the Senate HELP Committee, Dhillon expressed a lack of commitment to upholding the EEOC’s determination Title VII applies to LGBT workers, although the nominee said she’s “personally opposed” to anti-LGBT discrimination.  Gade was also tentative in his response on the issue, noting that he is “personally opposed to discrimination on the basis of . . . sexual orientation or gender identity” but that he is “committed to enforcing the law as its written and as the court interpreted it.”

Conclusion

The anticipated new viewpoints and a Republican-favored Commission will be welcomed by employers.  Ultimately, the commitment to decreasing the regulatory burden on employers and increasing educational outreach will provide more opportunities for employers to learn how to best manage their employees and operate their workplace, and it will also lend itself to a less adversarial relationship with the agency.

Although changes are expected in the near future, employers should nonetheless remain cautious about EEOC investigations and enforcement actions.  The new administration is not fully established throughout the agencies, and uncertainty regarding many issues, including Title VII interpretations and pay equity, are currently hot issues before the courts.  Therefore, employers should maintain and continue to enforce their employment policies, as they had under the Obama Administration, and ensure that they foster a welcoming environment for all of their employees.  Given the rapidly changing landscape in the EEOC and the areas of law it enforces, employers are encouraged to stay in communication with legal counsel prior to making any policy changes.

 

 

California Opportunity to Work Act Spells Trouble for Employers

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California Assembly Bill (AB) 5, the Opportunity to Work Act, was recently approved by the California Assembly Committee on Labor and Employment in April 2017.  The Appropriations Committee postponed a hearing on the bill that was scheduled for May 3, 2017.  Given the strong industry opposition to this bill and its harmful impact on employers, it is likely that the Appropriations Committee is taking a closer look at the bill and the negative Continue reading

Workplace Harassment 101

harassmentOne lesson companies of all sizes can learn from the sexual harassment claims that Uber is facing is that an employer needs to set clear restrictions on harassment and make a conscious effort to hold employees accountable to those workplace standards.  In particular, sexual harassment has been a significant issue in the workplace since men and women began working alongside each other.  However, it wasn’t until 1964, when Congress passed Title VII of the Civil Rights Act, that discrimination and harassment in the workplace was explicitly prohibited at the federal level.  Since then, several more anti-discrimination laws at both the state and federal level have been passed and countless judicial opinions denouncing unrestrained work culture and impermissible acts have been published.  So why is this still a hot button issue in the workplace over 50 years later?

Some may be of the opinion one complaint of workplace harassment is not a big deal because it is not reflective of the entire workforce or the values of the company generally.  While this may be true in some cases, it is important to investigate any such complaints because the root of the problem may be broader, such as Continue reading

House Passes Amendment to Fair Labor Standards Act Permitting Private Sector Comp Time

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On May 2, 2017, the U.S. House of Representatives passed the Working Family Flexibility Act of 2017 – a bill that would amend the Fair Labor Standards Act (FLSA) to permit private employees to take paid time off instead of receiving monetary overtime compensation when working more than 40 hours per week.  While uncertainty looms over the fate of the bill as it moves to the Senate, if the bill is passed and becomes law, it would be a major amendment to the FLSA.

Private sector employers must be vigilant of this bill as it progresses through Congress and be prepared to implement procedures to offer comp time instead of overtime wages, and establish a system to keep track of the amount of comp time employees accrue. Continue reading

Whistleblower Retaliation Article Published in BLR’s HR Daily Advisor and Upcoming Webinar

whistleblower-articleBLR recently published a two piece article in the HR Daily Advisor by Kara Maciel and Daniel Deacon, of Conn Maciel Carey’s national Labor & Employment Law Practice Group, regarding government agencies increased focus on whistleblowers and retaliation, and how employers can avoid whistleblower and retaliation complaints from their employees.

Over the past year, there have been significant changes in both the Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) that make it easier for employees to demonstrate that an employer acted with retaliatory intent.  Given this increased focus on retaliation, it is prudent for employers to take steps to avoid whistleblower and retaliation complaints from their employees, and ensure that they have adequate workplace policies and complaint systems to address retaliation complaints before an employee complaint lands before the EEOC or OSHA.

Part 1 of the article, titled “Preventing Whistleblowers in the Workplace: EEOC Expands the Rights of Whistleblowers,” focuses on how the EEOC has modified the standard it uses to evaluate retaliation claims, and has become more aggressive in its whistleblower enforcement efforts. Continue reading

Texas Judge Blocks DOL Persuader Rule with Nationwide Permanent Injunction

persuaderOn November 16, 2016, a Texas federal judge permanently blocked the U.S. Department of Labor (“DOL”) from enforcing its persuader rule in National Federation of Independent Business, et al. v. Thomas E. Perez, et al., Case No. 5:16-CV-066-C.  As we previously reported in a prior post, when the DOL published the final rule in March 2016, it imposed substantial reporting obligations on employers.  The old rule required disclosure of the use of an outside consultant if the consultant engaged in direct persuader activity, such as if the consultant directly communicates with employees about union representation.  The new rule, however, added reporting for indirect persuader activities; for example, providing communication materials to an employer to hand out to employees.  These types of activities typically, but not exclusively, arise in the context of a union organizing drive.

The DOL’s insistence on imposing stricter reporting requirements on employers stems from what the DOL perceived as a loophole in the Labor Management Reporting Continue reading

EEOC and State Legislatures Focus on Pay Equity and Transparency

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If there is one issue that has remained a hot topic in employment news throughout 2016, it is pay equity and transparency.  These topics have not only garnered attention at the federal level but at the state level as well.

The EEOC proposed significant changes to the EEO-1 report, a mandated compliance survey containing employment data, where it will begin collecting pay data based on certain demographic criteria in 2017.  Additionally, many states, including Maryland, are taking their own steps to ensure pay equity in the workplace.  These laws will likely trigger significant enforcement efforts by federal agencies and the states; thus, employers should be prepared to respond to investigations into their pay practices.  However, employers can take several steps to help limit potential liability over the next year.

New EEO-1 Report Requirements

In February 2016, the EEOC announced a major revision to the Employer Information Report (EEO-1) requiring all employers with more than Continue reading