Our previous articles in this Spotlight series on the U.S. Equal Opportunities Commission (EEOC) highlighted the agency’s enforcement and process benchmarks, as well as the political make-up of the commission – issues that highlight how the commission addresses and will address current pressing policy issues such as Incentives for the COVID-19 vaccination created. In particular, the unique “upside-down” nature of the Commission (ie two Democrats controlling the agenda but outnumbered by three Republicans) will affect the key issues the Commission will address in the months ahead. In this third part of our series, we highlight some of the potential key policy developments employers may wish to follow as the EEOC navigates through 2021 and beyond.
On June 15, 2021, the EEOC announced new LGBTQ stakeholder resources to coincide with the one year anniversary of the decision of the United States Supreme Court 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 on topics such as bathroom and workplace hygiene guidelines. The three incumbent Republican commissioners raised concerns that the guidelines covered matters that were not part of the Bostock Supreme Court ruling.
On May 28, 2021, EEOC released its long-awaited update on “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and other EEO laws,” which clarified a number of vaccination issues employers have been facing had every official guide to advise them. At this point in time, it seems unclear whether the EEOC will issue further updates to its COVID-19 guidance unless future developments require it.
At the EEOC, wage data collection remains a political football. Changes made to the EEO-1 form in 2016 to require submission of employee wage and hours data (Component 2) along with traditional demographic data were paused by the Trump administration, but then by a federal judge as Responding to resuscitated a legal challenge. Accordingly, before the form expired, the EEOC collected remuneration data from employers for 2017 and 2018. In June 2020, the Office of Management and Budget (OMB) approved a new EEO-1 form, this time without component 2, which is valid until 2023. The Commission has now tasked the National Academy of Sciences (NAS) with assessing the quality and benefits of the 2017/2018 wage data collection. NAS feedback will clearly play an important role in the Commission’s future approach to collecting wage data.
As a result, a return to data collection for component 2 is entirely possible if the majority of the Commission votes in favor of the Democrats in 2022. In addition, even Republicans on the Commission seem open to the concept of some form of compensation collection. While still on the regulatory agenda for Fall 2020, when Janet Dhillon was Chair, the commission was considering “introducing a rule (with a component of the paperwork reduction law) that could include a new reporting requirement for employers’ payroll or related information would transmit “. While a compensation reporting system may not be on the immediate EEOC agenda, the issue is not going to go away anytime soon.
Unlawful Harassment Enforcement Guide
In 2016 the Commission published its forward-looking June 2016 Report of the Co-Chairs of the Select Task Force on the Study of Mobbing in the Workplace. Following the report, the EEOC proposed new guidance on harassment in the workplace, which it submitted to the OMB in 2017. The guidelines have since sunk into there, and subsequent events – both political and legal – are likely to require a revision of the document. Firstly, Chair Charlotte A. Burrows is the only current Commissioner who has been involved in drafting the guidelines and it is likely that the other four Commissioners would like to make their own contribution to a final document. Second, the Bostock Supreme Court issued its ruling in 2020 – almost three years after the EEOC sent the harassment guidelines to the OMB. Any definitive guidance on workplace harassment must certainly take into account the Bostock precedent as well as other developments in case law that have occurred since the initial draft was completed.
Wellness in the workplace
Incentives provided by employers to encourage workers to get COVID-19 vaccinations are part of a larger, ongoing discussion in the commission about jobs, health care and the potential for discrimination. More specifically, the EEOC has been discussing for years whether – or to what extent – employers can provide incentives to encourage employee participation in employer-sponsored wellness programs without conflicting with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act ( GINA). After a 2016 final regulation on this issue was declared to be arbitrary and capricious by a federal court, the EEOC proposed new rules in January 2021 that would have basically allowed de minimis participation incentives. These proposals were withdrawn shortly after Commissioner Burrows was appointed chairman. Should the commission decide to wade back into the waters of the wellness program, Chairman Burrows will likely wait until it has a Democratic majority. Until then, there is little clarity for employers to consider incentives for workplace wellness programs.
Title VII requires the EEOC to resolve allegations of illegal employment practices prior to initiating litigation, but the law does not set parameters for what constitutes a sufficient attempt at arbitration. In order to clarify the process and update the rules, unchanged since the 1970s, the Commission published a final rule on January 14, 2021 “to make arbitration a more effective mechanism to stop unlawful discriminatory employment practices in a larger percentage and” to eliminate”. In general, the ordinance requires the commission to disclose “the essential facts and law that support the claim, findings and claims” during the arbitration process. The US Senate voted in favor on May 19, 2021 to repeal the rule under the Congressional Review Act. On June 24, 2021, the US House of Representatives passed an accompanying resolution along the party lines and President Joe Biden is expected to sign the repeal. This will add ambiguity and opacity to the arbitration process and potentially lead to more litigation to lead.
Delegation of legal authority
Federal law empowers the EEOC to litigate to enforce the federal prohibition of discrimination in the workplace. As of 1995, the Commission began to cede this power to the General Counsel. While this decision was intended to improve the efficiency of the Commission, some stakeholders alleged that it was unaccountable and resulted in inconsistent enforcement practices. From March 2020, the then chairman Dhillon returned part of this procedural authority to the Commission, which culminated in a vote on January 13, 2021, to return a large part of the procedural authority to the Commission. All five current Commissioners took part in this vote, which means the delegation question is unlikely to change until changes are made to the Commission itself. When this happens and the Democrats gain a majority, you should try to return authority to the General Counsel.
© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, PC, all rights reserved.National Law Review, Volume XI, Number 180