Many federal agencies and their regulations experienced a lot of changes during 2017. The Equal Employment Opportunity Commission (EEOC), by contrast, had a relatively uneventful year. No major controversial issues surfaced, key leadership positions were left unfilled, and some EEO issues are important to the president’s daughter—and by extension may be important to him. So far, during the Trump administration, the agency has held the status quo.
Nominees Waiting to be Confirmed
We ended 2017 with two seats on the commission and the general counsel spot at the agency being unfilled. At some point in 2018, the agency will most likely have a Republican majority. President Donald Trump has nominated Janet Dhillon to serve as chair of the EEOC and Daniel Gade to fill the other vacancy. Neither has been confirmed by the Senate, although it’s likely they both will be. No one has been nominated to be the general counsel.
Title VII’s Coverage of Sexual Orientation, Gender Identity
While the federal courts have differing opinions on whether Title VII of the Civil Rights Act of 1964 covers sexual orientation and gender identity, the EEOC has steadfastly maintained that it does. I was with the agency throughout the second Bush administration and the Obama administration, and our training on the issue never changed. During their confirmation hearings, neither Dhillon nor Gade would commit to whether the law does or should protect LGBT individuals from discrimination and harassment.
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Both nominees have voiced conservative views on employment matters in the past. Referring to the U.S. Department of Justice’s recent divergence from the EEOC’s position on Title VII’s application to sexual orientation and gender identity, Dhillon said it is “critical that the federal government ultimately speak with one voice” on the issue. The U.S. Supreme Court has not weighed in yet—in fact, the justices just declined to hear an appeal from the U.S. 11th Circuit Court of Appeals in a case filed by a lesbian employee who claimed she was fired because of her sexual orientation. (The 11th Circuit’s rulings apply to all Alabama employers.) After its vacancies are filled, we expect the EEOC to file fewer cases involving discrimination or harassment against LGBT individuals until the Supreme Court clarifies the law.
Sexual Harassment Claims on the Rise
Sexual harassment has been at the forefront of the news for months, and it’s likely to stay there for a while. We should expect to see an increasing number of EEOC charges and lawsuits as women begin to feel more empowered by the news coverage. It’s important to remember that the law hasn’t changed, and neither has the definition of what constitutes unlawful harassment in the workplace.
As we reminded you in December (see “Hollywood scandals generate new interest in workplace harassment” on pg. 4 of our December issue), you must ensure that your supervisors and managers are aware of the legal prohibitions against harassment and your policies banning unlawful conduct in the workplace. Supervisors should administer your policies consistently, and employees should be able to complain about harassment without fear of reprisal. Be sure your employees are educated on your internal antiharassment policies, including what constitutes unlawful harassment and how to report offensive conduct.
EEO-1 Pay Data Collection
Although the Office of Management and Budget halted the new pay data collection component of the EEO-1 report in August 2017, it may be resurrected in some form in 2018. Commissioner Chai Feldblum, a Democrat renominated by Trump to continue serving until 2023, said she believes the EEOC was directed to rework the form, not scrap it entirely. Dhillon said during her confirmation hearing that she would look at the additional data the EEOC needs to enforce the equal pay laws and suggested that employers might be required to turn over more pay data than they do now. So it’s likely that some pay data will be added to the EEO-1.
In August 2017, the D.C. Circuit sided with the AARP in its challenge to the EEOC’s new regulations governing wellness plans. The court found that the EEOC didn’t provide good reasons for allowing employers to offer incentives of up to 30 percent of the cost of health insurance in exchange for employees’ participation in a wellness program. The current wellness plan rules were left in place until January 1, 2019, and the agency was ordered to issue a notice of proposed rulemaking (NPRM) detailing its plans for the new rules by August 2018. In early February, however, the court partially granted the EEOC’s request to reconsider its ruling.
The agency now has no set schedule for issuing the NPRM or implementing new rules, but its current rules for workplace wellness programs will still be invalidated on January 1, 2019. The EEOC had previously said it might not have new rules in effect until 2021. So it looks like there will be no change with regard to wellness plans in 2018.
Dhillon and Gad have stressed that the EEOC should be involved in less litigation and more conciliation. The large systemic cases the EEOC has filed in recent years are expensive for both the agency and employers. Even though a new general counsel hasn’t been nominated, observers predict fewer lawsuits will be filed once the new commission settles in. Cooperation, outreach, and training to help companies comply with the law will be the focus of the Trump administration’s EEOC, whenever it is seated.
You can reach JW Furman at 205-323-9275.