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.

 

 

As Holiday Party Season Approaches, Tips for Employers To Stay Out of Trouble

shutterstock_231464086By:  Kara M. Maciel & Daniel C. Deacon

This time of year is full of festivities, good cheer, and time away from the office.  However, one thing many people look forward to in the workplace is the office holiday party.  As the holiday season arrives, employers should consider the following steps to avoid legal problems that could arise from the yearly office party.

  1. Uphold Company Behavioral Policies and the Employee Handbook.

Outside of the office, there will naturally be a degree of informality that makes people behave different than they otherwise would in the office.  This degree of informality may be heightened even more so by the consumption of alcohol.  While alcohol tends to be commonplace at many work parties, it is important to uphold company behavioral policies and remind employees to act appropriately at work functions both inside and outside of the office.  The overconsumption of alcohol could quickly turn a fun and celebratory night into a situation that puts not only intoxicated employees at risk, but the company as well.

For example, holiday-related sexual harassment and related lawsuits stemming from events that occurred at workplace parties are not a new phenomenon.  Under federal and state law, employers have a legal obligation to prevent harassment in the workplace.  This duty extends to work-sponsored events, like holiday parties, and even to the appropriateness of gifts for a holiday gift exchange.  When an employer does not abide by this duty, it can be vicariously liable for employee behavior committed in the course of employment.  However, employers can typically evade liability if it can demonstrate that it took reasonable steps to prevent the sexual harassment or that the employee did not use the employer’s complaint procedures to alert the employer of the problem.

One recent example of the troubles employers may face from employee’s inappropriate behavior at the office holiday party can be found in Dall v. St. Catherine of Siena Medical Center.  In this case, a complaint of sexual harassment stemming from an employee’s behavior at the holiday work party resulted in that employee’s termination.  The terminated employee then filed a lawsuit against the employer for gender discrimination, hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964.

In light of the many issues that may arise, employers should take time to review their employee handbook, and, if necessary, update it so it expressly notes that employees are subject to the anti-harassment policy at company sponsored events.  This may be a good time of year to explicitly remind employees of the anti-harassment and reporting policies, and inform them that the policy applies to social and non-social events inside and outside of the office equally.

  1. Do Not Mix Business Celebrations with Religious or Cultural Traditions.

While it may seem strange to gather around the holidays and not think about the religious or cultural traditions that play a role in many people’s lives this time of year, employers should not celebrate any religious or cultural traditions at all in the workplace – including the holiday party.

A holiday party that focuses on a particular religious celebration could be grounds for an employment discrimination lawsuit.  Religion is a protected category under Title VII, and favoring any type of celebration or ritual, or purposefully excluding another, could spell trouble for your company.  The holiday office party should steer clear of any traditional religious and cultural symbols, décor, themes, and even foods.  With such a diverse workforce, it is important to make everyone feel welcome and comfortable.  Employers should simply put the emphasis on celebrating what every employee has in common – the workplace.

  1. Be Careful when Providing Alcohol and Do Not Make the Office Party Mandatory.

Alcohol, as noted above, may create problems for employers that otherwise would have never happened.  Outside of the potential Title VII issues that may be exacerbated by the consumption of alcohol, employers should also consider taking precautionary measures to limit its tort liability.  State law varies on whether an employer may be held liable for injuries that occur due to an intoxicated employee’s actions.  Employers would be wise to look into their respective state law before serving free alcohol at work events.

Even though a party host may not be liable for the behavior of a guest depending on the state law, employers should nonetheless be careful when organizing and planning the party.  As an employer, you may be liable for the behavior of an employee who is acting within the scope of his employment.  Whether attending a company holiday party is “within the scope of employment” varies on a case-by-case basis.  For example, if attendance is mandatory, a court may find employees to be acting within the scope of their employment.  In Kum Ja Kim v. Sportswear, an employee was struck and killed by another employee while leaving an office holiday party.  Attendance at the party was not technically mandatory but the employer allowed workers to leave work early on the day of the party and strongly encouraged employees to attend with their families.  The Virginia Court of Appeals used the doctrine of respondeat superior in finding the employer liable, ultimately holding that the work party was closely connected and associated with employment.  The court emphasized that the party took place on the employer’s premises, employees were reasonably expected to attend, the employer sponsored the party, the employer supervised the conduct, and the employer used the event to its benefit.

If you want to serve alcoholic beverages, there are many ways to mitigate the associated risk.  Here are a few examples to monitor alcohol consumption and prevent employees from drinking too much:

  • Offer a limited number of drink tickets to each employee.
  • Hire professional bartenders to serve alcohol.
  • Provide plenty of food.
  • Set a last-call for alcohol well in advance of the end of the party.
  • Hold the office holiday party during the day. Employees will benefit from getting a half-day off from work and perhaps drink less during the middle of the day.
  • Invite significant others can also help, as it makes the entire affair less intimate and can influence employee’s behavior.

Finally, employers should encourage designated drivers or even consider subsidizing transportation from the holiday party.  In anticipation of the holiday party, many employers send a Holiday Party Office Memorandum laying out the pertinent information for the parties as well as the employer’s policies and expectations from its employees.  This can be an effective way of sending a message to employees to behave appropriately while having fun.