Our previous articles in this spotlight series on the U.S. Equal Employment Opportunity Commission (EEOC) highlighted the agency’s enforcement and litigation metrics and political composition of the Commission—matters that underscore how the Commission has and will address current pressing policy issues, such as employer-provided COVID-19 vaccination incentives. In particular, the unique “upside down” nature of the Commission (i.e., two Democrats who control the agenda but are outnumbered by three Republicans) will impact the substantive issues that the Commission will address in the coming months. In this third part of our series, we highlight some of the potential substantive policy developments that employers may want to track as the EEOC navigates through 2021 and beyond.
On June 15, 2021, the EEOC announced new LGBTQ resources for stakeholders to coincide with the one-year anniversary of the Supreme Court of the United States’ decision in Bostock v. Clayton County, Georgia, in which the Court ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity. The resources include guidance relating to issues such as workplace bathroom and grooming policies. The three current Republican commissioners expressed some concern that the guidance addressed matters that were not part of the Supreme Court’s ruling in Bostock.
On May 28, 2021, the EEOC released its long-awaited update to “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” clarifying a number of vaccination issues with which employers had grappled without any official guidance to advise them. At this point, it seems unclear whether the EEOC will issue any further updates to its COVID-19 guidance, unless future developments necessitate.
Wage data collection remains a political football at the EEOC. Changes that were made to the EEO-1 form in 2016 to require submission of employee wage and hours worked data (Component 2) along with the traditional demographic data were paused by the Trump administration, but then subsequently resuscitated by a federal judge in response to a legal challenge. Accordingly, the EEOC collected compensation data from employers for 2017 and 2018 before the form expired. In June 2020, the Office of Management and Budget (OMB) approved a new EEO-1 form, this time without Component 2, which is valid through 2023. In the meantime, the Commission has tasked the National Academy of Sciences (NAS) with assessing the quality and utility of the 2017/2018 wage data collection. Feedback from the NAS will clearly play a significant role in the Commission’s future approach to wage data collection.
As a result, a return to Component 2 data collection is a distinct possibility when the Commission majority flips in favor of Democrats in 2022. Moreover, even Republicans on the Commission appear to be open to the concept of some form of compensation collection. As recently as the 2020 fall regulatory agenda, when Janet Dhillon was chair, the Commission was “considering initiating a rulemaking (with a Paperwork Reduction Act component) that may include a new reporting requirement by which employers would submit pay data or related information.” While a compensation reporting scheme might not be on the EEOC’s immediate agenda, the issue is not going away soon.
Enforcement Guidance on Unlawful Harassment
In 2016, the Commission released its prescient “June 2016 Report of the Co-Chairs of the Select Task Force on the Study of Harassment in the Workplace.” Following up on the report, the EEOC proposed new workplace harassment guidance, which it sent to the OMB in 2017. The guidance has languished there since, and subsequent events—both political and legal—likely demand a rewrite of the document. First, Chair Charlotte A. Burrows is the only current commissioner who participated in the drafting of the guidance, and it is likely that the other four commissioners would want to provide their own input on any final document. Second, the Supreme Court handed down its Bostock decision in 2020—almost three years after the EEOC sent the harassment guidance to the OMB. Any final guidance on harassment in the workplace will surely have to take into account the precedent-setting nature of Bostock, as well as other case law developments that have transpired since the original draft was finalized.
Employer-provided incentives to encourage employees to receive COVID-19 vaccinations are part of a larger, ongoing discussion at the Commission concerning workplaces, healthcare, and the potential for discrimination. More specifically, for years the EEOC has been debating whether—or to what extent—employers may provide incentives to encourage employee participation in employer-sponsored wellness programs without running afoul of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). After a 2016 final regulation on the subject was invalidated by a federal court as arbitrary and capricious, in January 2021 the EEOC proposed new rules that generally would have permitted de minimis participation incentives. These proposals were subsequently withdrawn shortly after Commissioner Burrows was named chair. Should the Commission choose to wade in the wellness program waters again, it is likely that Chair Burrows will wait until she enjoys a Democratic majority. Until then, there is little clarity for employers that are considering workplace wellness program incentives.
Title VII requires the EEOC to conciliate allegations of unlawful employment practices prior to engaging in litigation, but the statute does not establish parameters regarding what constitutes a sufficient attempt at conciliation. In order to clarify the process and update regulations that have not been changed since the 1970s, on January 14, 2021, the Commission published a final rule “to make conciliation a more powerful mechanism to halt and remedy unlawful discriminatory employment practices in a greater percentage of charges without litigation.” Generally, the regulation requires the Commission to disclose “the essential facts and the law supporting the claim, findings, and demands” during the conciliation process. On May 19, 2021, the U.S. Senate voted to rescind the rule pursuant to the Congressional Review Act. On June 24, 2021, the U.S. House of Representatives passed a companion resolution along party lines and President Joe Biden is expected to sign off on the repeal. This will return more ambiguity and opacity to the conciliation process and perhaps result in increased litigation.
Delegation of Litigation Authority
Federal law authorizes the EEOC to engage in litigation to enforce federal prohibitions on discrimination in the workplace. Beginning in 1995, the Commission began ceding this authority to the general counsel. While this decision was intended to create efficiencies at the Commission, some stakeholders claimed that it avoided accountability and led to inconsistent enforcement practices. Beginning in March 2020, then-chair Dhillon returned some of this litigation authority to the Commission, culminating in a January 13, 2021, vote to return much of the litigation authority to the Commission. All five current commissioners participated in this vote, meaning that the delegation issue is unlikely to change until there are changes to the Commission itself. When this happens, and Democrats gain a majority, look for them to seek to return authority to the general counsel.
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