Earlier this month, acting EEOC Chair Victoria Lipnic appeared at a panel discussion in Chicago where she spoke about the agency’s expected focus in the upcoming administration and in light of President Trump’s directive to scale back regulations on businesses. Lipnic opened her remarks by stating that despite the new administration, “the EEOC remains committed to its core values and its core mission and that is not going to change.” She continued, “Having said that, it is a new administration, and President Trump has made it very clear that he is interested in jobs, jobs jobs. And for many years, my time in the Commission, I have been saying we are the Equal Employment Opportunity Commission, underscore opportunity…The President has also made it clear that in terms of regulatory policy in particular, and we play a big role in that, that where there are opportunities to refocus things in a a way that will foster economic growth and foster job growth, that is something we should be mindful of.”
The EEOC is made up of five commissioners who are appointed by the president and whose terms end at different times. Lipnic is a Republican and has served on the Commission since 2010. There is currently once vacancy on the Commission, and Democrat commissioner (and former EEOC Chair) Jenny Yang will leave the Commission when her term expires on July 1, 2017. That means that we can expect to have a Republican-majority EEOC as of July 1, 2017. The EEOC’s General Counsel position is also vacant and awaiting nomination by President Trump.
Lipnic said she didn’t anticipate major changes to the EEOC’s enforcement priorities of protecting vulnerable workers and increasing employee access to the legal system, but she said that age discrimination issues “could get a high profile this year,” which marks the 50th anniversary of the Age Discrimination in Employment Act. Lipnic also mentioned that she is “very interested in equal pay issues,” though acknowledged that the EEOC historically has not brought many enforcement actions under the Equal Pay Act.
Despite her interest in equal pay, one shift that Lipnic suggested we might see is in the EEOC’s recent revision to the EEO-1 reporting requirements. The new EEO-1 form, scheduled to go into effect March 1, 2018, would require all private employers that are covered by Title VII and have at least 100 employees to report on their annual EEO-1 forms information regarding the pay and hours worked for all employees. The EEOC could then use this information to determine whether there are significant disparities in reported pay between men and women, or according to ethnicity, and if so, investigate whether such disparities are the result of unlawful discrimination.
Lipnic noted that she had voted against the EEO-1 revisions and said that the agency should avoid trying to impose “30 year-old solutions to modern-day problems.” She also noted that the new EEO-1 “fits squarely” into the type of regulatory policy that the President has opposed. Lipnic stated that the agency should reevaluate the costs and benefits of the pay reporting requirements and that such reevaluation is something she looks forward to discussing with her colleagues in the future. Given that her current colleagues all voted in favor of the new EEO-1 reporting requirements, my guess is that any reevaluation will take place after July 1 when Republicans regain a majority of the EEOC’s commissioners. Still, with a March 1, 2018 effective date, there will be plenty of time for the EEOC to reverse course on the new requirements if it chooses to do so.
For a more in-depth analysis of these and other issues, we encourage you to join Skoler Abbott attorneys Amelia Holstrom and Stefanie Renaud at their upcoming breakfast briefing titled “What Will 2017 Bring?: Employment Law in the New Year.” The briefing will take place on March 2, 2017 from 8:00 – 10:30 in Springfield, Massachusetts. If you would like more information or would like to register, please call our office for more information or email me.
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