The U.S. Equal Employment Opportunity Commission (EEOC) is a federal anti-discrimination agency lead by a five-member commission that votes on whether its general counsel should file lawsuits in job discrimination cases that may be especially complex or controversial. On January 25, 2017 President
Trump named Victoria Lipnic Acting Chair of the EEOC. Lipnic, a Republican, was first appointed EEOC Commissioner in 2010 by President Obama. With this appointment, and two more Trump appointments to come, the commission will change from Democratic control to a Republican majority. This changing of the tide creates questions regarding the commission's focus moving forward.
Lipnic indicated the commission's direction during a panel discussion on February 8 when she stated that the EEOC will continue to focus on the enforcement of anti-discrimination laws, stating, “We are an enforcement agency.” But she also stated that there may well be a shift away from the larger ‘systemic' cases that were a focus under the prior Commissioner, and more of a focus on individual claims. Lipnic also left no doubt that under the Trump administration, there will be a strong focus on job growth. Lipnic said, “President Trump has made it very clear that he is interested in job, jobs, jobs,” and the agency will echo that tune through its policies. In terms of other agency priorities, the EEOC will focus on equal pay cases and age discrimination cases, as this year marks the 50th anniversary of the Age Discrimination in Employment Act. Lipnic said, “I am very interested in equal pay issues. It's something I would consider a priority.”
Lipnic stated the EEOC needs to make sure “we recognize the kind of business practices that are necessary for companies to be competitive today and that those thoughts and notions get incorporated into our policymaking.” In terms of regulations, she added: “The president has also made it clear … that where there are opportunities to refocus things in a way that will foster economic growth and foster job growth, that is something that we should be mindful of.”
Lipnic has shown to be pro-business through her voting record on the commission. Notable cases Lipnic opposed bringing lawsuits against include:
- A power company for systematically discriminating against disabled job applicants and workers and accusations of rejecting workers even though they had doctors' opinions that they could work.
- A financial services company for harassing a transgender employee with epithets and refusing to let her use the women's restroom.
- An Arizona trucking company, for failing to accommodate workers with disabilities, including firing a woman who needed more time to recover from eye surgeries.
- Lipnic opposed the commission's stance that employers must provide workplace accommodations for pregnant women, arguing that greater protection for pregnant workers should come through Congress instead. She also voted against guidelines for employers on national origin discrimination and illegal retaliation.
Submission of Employee Pay Data
Lipnic also addressed one of the agency's more recent controversial actions regarding regulations that expand the information about employee compensation many businesses have to disclose as part of the EEOC's broader effort to combat pay discrimination. The new regulation expands the scope of the EEO-1 report, and would require all businesses with 100 or more workers to submit pay data by gender, race and ethnicity on their employer information report. The new report will require employers to submit data on salary, in two different salary bands, and how many workers fall within each band.
Many employers, large and small, have complained that the scope and detail required by this new report will make it extremely burdensome to produce, especially for those who do not have sophisticated salary systems which can analyze such data. Lipnic would like a re-evaluation of the costs and benefits of a recent and controversial new EEO-1 Rule. Lipnic said that she voted against the new rule and said that it is something she looks forward “to having a conversation with my colleagues about. We need to make a hard assessment of how we are best using our resources.” “If that means a bit of a course correction on systemic, we should look at it. It's important to do systemic cases, but we have to be strategic about them,” Lipnic said.
Lipnic's record on LGBT issues has been mixed and uncertainty of LGBT rights in the workplace have employers guessing. Just last week, the Trump administration rescinded federal guidance allowing transgender students to use bathrooms corresponding to their gender identity. This news suggests that Attorney General Jeff Sessions intends to roll back the Obama administration's move to expand civil rights over the last eight years. Further, the new guidance follows on the heels of a temporary injunction blocking the transgender bathroom directive nationwide. Press Secretary Sean Spicer said that this move is in line with President Trump's campaign promise to leave certain issues in the hands of the states.
While schools may no longer need to worry about accommodating transgender restroom choices as a matter of federal law, employers should still be concerned about the workplace. The EEOC continues to argue that Title VII now bars discrimination based on sexual orientation and gender identity. Whether Lipnic and the EEOC will reverse course on that position once Republicans hold a majority of seats on the commission and a new general counsel is appointed remains to be seen. California employment lawyers at Kingsley & Kingsley will continue to monitor and report on changes within the EEOC and resulting regulations. Should you have any questions about employment laws in California, don't hesitate to reach out to us by calling toll-free at (888) 500-8469 or contacting us via email.