Several weeks ago, we looked at how a Trump presidency might impact the NLRB. What about the EEOC? Can President Trump change the way the EEOC does things? If so, how much? Can and will the EEOC continue in the direction it was headed just before President Obama left office? In short, what can we expect will change at the EEOC, and how much can we expect things will change? While few if any of us have a crystal ball or know how to accurately read palms or tell fortunes, we can make some educated guesses, and glean some general impressions. Well then let’s do that, shall we, after the jump…
Understanding how the President — any President–can and does impact the EEOC requires at least a general understanding of how the EEOC works. Some of what the EEOC does is directly grounded in federal laws and regulations, and court rulings interpreting them. Some stem more directly from the agency leadership and positions it chooses to take on certain issues. Actions in the first category are less likely to change or may change more slowly than those in the second category. On the other hand some actions do not fall neatly into either category, and so it is even harder to predict with certainty what could happen there. If that’s not enough, some enforcement activity depends on the current administration’s priorities and its interpretation of regulations, or Executive Orders from the current President. Sometimes it’s enough to make you dizzy!
Let’s look at some common issues that have been “hot buttons” and some other phenomena as examples.
There is no way we can even think about the EEOC without going back to the question of Title VII’s application to the rights of the LGBT population. We know that the EEOC has very openly and clearly stated its position: that Title VII’s ban on discrimination “because of sex” extends to discrimination based on sexual orientation and gender identity. Title VII does not explicitly forbid discrimination on these bases. Title VII is however, a federal statute. One way to settle the question is to amend Title VII to either explicitly include or exclude sexual orientation and gender identity in those prohibitions. That requires getting Congress involved. We can assume that would not happen any time soon. But there is another way. This very issue is before a number of courts. A few Circuit Courts of Appeals have ruled or are expected to rule on the issue soon. When a Circuit Court of Appeals makes a ruling, it becomes the law of the land in the States under that court’s jurisdiction — unless and until the US Supreme Court hears the matter and says otherwise. The EEOC cannot change a court ruling. Neither can the President. Congress can pass legislation overruling a court ruling, but that brings us back to waiting for Congress to act. The EEOC can decide to limit its focus and resources, though, which in turn might limit investigations in this area. In those jurisdictions where courts rule that Title VII does protect the LGBT population, however, the individual lawsuits may well increase, regardless of what the EEOC does.
Now, there is another point about the EEOC not known to many people. The EEOC is not as centralized as many believe. In fact I had the privilege to hear Ms. Lipnic speak in Washington a few years ago (when she was an EEOC Commissioner) and she conceded as much. The EEOC’s is regional offices have a lot of discretion and independence as to how to act on certain priorities and even as to what cases to pursue and how. Some regions are more aggressive than others. That is why it will often seem as though the EEOC is acting inconsistently. For example, back in 2006, the EEOC settled a case involving waivers of discrimination claims in severance agreements. (EEOC v Eastman Kodak) The settlement included language to be used in future severance agreements, and many employers after Eastman Kodak used that very language in their severance agreements. In 2014, however, the EEOC challenged severance agreements using that very language. Those cases all originated out of different Regional Offices. This particular phenomenon in some ways shows how the EEOC can even get in its own way without any help from the President. Moreover, the EEOC is not a cabinet-level agency. It acts based on votes cast by the commissioners, a bi-partisan body.
So how might President Trump could cause changes within the EEOC? I mentioned regulatory actions above. Let’s take the new EEO-1 reporting requirements. Under the new rules, most federal contractors and many large employers will have to provide additional information on the EEO-1, specifically pay ranges and hours worked in conjunction with demographic information. The first filing deadline for this additional information is March 31, 2018. The specifics as to how the data is collected are governed by regulations, which are promulgated by the EEOC. By March 2018, via presidential appointment, the composition of the EEOC’s leadership could have changed enough to cause the Commission to change those regulations. Anything that stems out of regulatory action by the EEOC can be impacted by who President Trump appoints as successor commissioners. Over time then, we could see at least a gradual shift in the EEOC’s priorities.
So where does that leave employers? Here’s my take: don’t expect big, quick or sweeping changes in the EEOC — at least not now. We probably will see gradual, subtle changes, gradual, over time. Could I have just said that and not bothered with all of the other stuff? Sure, but now you also know why. Besides, as they say, getting there is half the fun. OK then, bye for now!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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