Employers can expect the Equal Employment Opportunity Commission (EEOC) to shift its priorities to a more employee-friendly focus under President-elect Joe Biden’s administration, but changes won’t occur overnight.
The EEOC enforces federal laws that prohibit employment discrimination, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964.
“Enforcement will not look terribly different at the outset,” said James Plunkett, an attorney with Ogletree Deakins in Washington, D.C. For example, the EEOC’s guidance on COVID-19 in 2021 will likely be similar to its response in 2020, he said. However, a Democrat majority on the commission may make issues such as pay-data collection a priority again.
Paul Patten, an attorney with Jackson Lewis in Chicago, noted that a shift in priorities is generally a slower process than people may think. “On the [employer] defense side, we started seeing some concrete changes in policy and practices from [EEOC] headquarters during the Trump administration in July of 2020,” he said.
EEOC Leadership Team
The EEOC’s bipartisan commission includes a chair, vice chair and three commissioners, all of whom are presidentially appointed. Three members are selected from the president’s political party, and two are chosen from the opposing party.
The chair oversees the commission’s policies, finances and organizational development. The members work together to develop and approve policies, issue discrimination charges, and authorize lawsuits. The president also appoints a general counsel, who provides direction and supervision to the EEOC’s litigation program.
Although Biden can name a Democrat to lead the EEOC, the current members, who were appointed by President Donald Trump, will remain on the commission until their terms expire or they resign.
The commission’s members currently include three Republicans (Chair Janet Dhillon, Vice Chair Keith Sonderling and Commissioner Andrea Lucas) and two Democrats (Commissioners Charlotte Burrows and Jocelyn Samuels). Republicans will hold a majority on the commission through the summer of 2022. Trump also appointed General Counsel Sharon Fast Gustafson, and her term ends in 2023.
“So whichever Democrat is named chair will have a difficult time advancing her preferred agenda,” Plunkett noted. “Of course, this could also create incentives to develop bipartisan initiatives.”
The EEOC’s current Strategic Enforcement Plan (SEP), which establishes the EEOC’s enforcement priorities, will also remain in place until 2022. “The existing SEP and the makeup of the commission suggest that a wholesale shift in direction would be very difficult until there are changes in the composition of the commission,” observed Randy Coffey, an attorney with Fisher Phillips in Kansas City, Mo.
What’s in Store
The current commission has proposed several new rules, including one that would update its conciliation program and encourage employers to voluntarily resolve employment discrimination charges. The Society for Human Resource Management submitted a comment letter in response to this proposal. During an EEOC hearing in October, Dhillon said the proposed regulation will “create greater accountability and transparency in the conciliation process.” The agency would accomplish this, in part, by providing more information to employers.
Burrows noted that the conciliation process is important because it helps “resolve charges of discrimination on behalf of thousands of working men and women each year.” However, she called the current proposal “deeply flawed.”
“A quick settlement is not always a fair settlement,” she said.
Another proposal would revise the agency’s guidance on religious-discrimination claims for the first time in 12 years. Sonderling said the guidance is meant to be a practical resource for employers, employees and EEOC enforcement staff. “The guidance explains the variety of issues applicable to religious-discrimination claims and provides guidance to employers on how to balance the needs of individuals in a diverse workplace.”
The proposed rule also “expands the discussion of defenses that may be available to religious employers,” according to the agency.
The EEOC approved the proposal, but Burrows and Samuels voted against it, stating that they needed more time to review the details. Burrows said the subject matter “is particularly complex” and involves the scope and interpretation of Title VII and its interplay with other evolving areas of law.
Coffey noted that Biden’s EEOC may modify, repeal or implement various policies, regulations and working agreements with other federal agencies. Biden wants to increase the commission’s budget and “empower the EEOC to initiate investigations for all areas of discrimination under its purview,” according to his campaign website.
“The incoming Biden administration and the existing two EEOC commissioners who are Democrats have suggested a number of areas of increased attention and priorities that are likely to evolve over the course of the next two years,” Coffey said. For example, Biden’s EEOC may issue enforcement guidance on sexual-harassment prevention, which has stalled in the Office of Management and Budget review process.
Patten noted that the agency may focus more on lesbian, gay, bisexual, transgender and queer (LGBTQ) rights, particularly since the U.S. Supreme Court ruled in June that Title VII protects workers from discrimination based on sexual orientation and gender identity.
In addition, Coffey said, the EEOC certainly will turn greater attention to pay equity issues, along with efforts to revive pay-data collection and reporting requirements through the EEO-1 survey. The agency will likely focus on employment misclassification, temporary workers’ rights and the gig economy, too.
“A new general counsel at the EEOC, once nominated and confirmed, presumably will steer the EEOC’s litigation efforts in these directions,” Coffey said.
Other changes may depend on whether Republicans retain control of the Senate. The Biden campaign indicated support for a host of new legislation regarding pay equity, LGBTQ rights and religious exemptions, accommodations for pregnant workers, and updates to age-discrimination provisions.
“If Republicans remain in the majority in the Senate, these legislative changes may fail and are virtually certain to be at least somewhat limited,” Coffey said. “On the other hand, if they were to pass and be signed into law, the EEOC would have a host of expanded enforcement responsibilities added to its current scope of duties.”