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What will Trump’s EEOC look like?

by JW Furman

During my years with the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC), I saw several changes in presidential administrations and power shifts between the major parties in Congress. Following major political upheavals, changes in the priorities of those agencies and even in the day-to-day tasks of their employees certainly occurred, but those changes usually came slowly. After the 2016 election results, I believe that changes for many agencies, including the EEOC, will occur much more quickly than we have previously seen. President Donald Trump and the Republican Party have vowed to erase many of the previous administration’s programs, and they want to demonstrate their commitment to change immediately.

Leadership departures signal change
The groundwork for changing the direction of the EEOC has already been laid. The current chair’s term will end in July. As soon as her replacement is named, the EEOC’s leader and majority will be Republican. The current agency leaders are expecting the new commission to be much more involved in reviewing cases and deciding which ones will be filed in court. In the outgoing administration, those decisions were made by the general counsel in conjunction with the district directors.

The EEOC’s general counsel, who has wielded much power since 2010, left in December. His position can be filled immediately. The former general counsel used class actions and systemic investigations to influence and enforce discrimination laws. He was criticized by some Republicans for focusing on systemic cases in which no charge was filed by an aggrieved party. Those large high-profile and high-expense lawsuits likely will not be supported or funded by the new leadership. Even under the Obama administration, the EEOC’s budget was stagnant, and there’s no reason to believe that it will fare better now.

Shift away from regulation, toward mediation
President Trump has been clear that he wants less regulation on business. Many in the Republican-majority Congress agree with him. I have been told that the new EEO-1 surveys requiring employers to report employee pay information are expected to be rescinded, possibly even before they go into effect next year.

It’s also expected that reducing the backlog of administrative cases will be emphasized by shortening the process—shorter deadlines for the parties to provide information and produce evidence, more mediation, and probably fewer unsubstantiated demands for large settlements by the EEOC. If the issue is pressed, I believe the EEOC’s hard line against binding arbitration agreements between employers and employees also will soften. These philosophical changes will likely reduce the number of investigators and increase the number of mediators (either in-house or contractors) in time.

Mediation has accounted for most of the money and benefits secured by the EEOC for its charging parties in recent years. The agency’s mediation pilot program was born during a Republican administration (Bush I) and later expanded to include conciliation (i.e., settlement after a cause finding) under Bush II. My expectation is that the EEOC will fund and expand the mediation program because it has such an impact and allows employers more flexibility in resolving employee disputes. Mediation may become available for all charges filed with the agency.

What we can expect
Because of the party change in the executive branch, I would expect to see President Barack Obama’s emphasis on LGBT and gender identity issues and equal pay to decline by the time the new EEOC chair is appointed. President Trump has said very little on those issues, so they seemingly aren’t priorities for him. Vice President Mike Pence opposes equal pay legislation.

We don’t know who will be appointed to leadership positions in the EEOC; however, we should expect viewpoints similar to those of withdrawn nominee for secretary of labor Andrew Puzder, who is against more regulation on employers (he opposes raising the minimum wage and requiring paid sick leave). We should expect the EEOC to become less focused on investigation and enforcement and more focused on compliance assistance and charge resolution.

JW Furman is an EEO consultant investigator, mediator, and arbitrator at Lehr Middlebrooks Vreeland & Thompson, P.C. Before working with the firm, Furman was a mediator and investigator for 17 years with the Birmingham District Office of the EEOC. She has also served as an arbitrator and hearing officer in labor and employment matters. She may be contacted at jfurman@lehrmiddlebrooks.com.

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