New EEOC Chair’s First Thoughts on Agency Under Trump Administration

This week the newly appointed acting Chair of the EEOC gave her initial indication of what the EEOC might look like under her leadership.  Overall the Chair did not depart greatly from the general direction the EEOC took under the Obama administration, though she recognized that some changes were certain to occur.  She noted that President Trump has yet to appoint General Counsel, as well as two more Commissioners to the EEOC, and since direction is dictated by a vote of the Commissioners, it is premature to foresee what changes or non-changes might occur over the next four years.  She did add some nuance to the following issues, which are issues of some importance to employers:

• She expected the agency to continue the strategic plan outlined in the fall of 2016. (See below for an outline of that plan.)

• She reinforced the agency’s systemic initiative. Under this initiative, the EEOC pursues large-scale, high-profile matters that have the potential to broadly impact an industry, profession, company or geographic area.

• She extolled the benefits of filing lawsuits on behalf of individuals against employers.

• She professed uncertainty regarding the fate of the new onerous EEO-1 rules.

EEOC 4-YEAR STRATEGIC PLAN

The following are the EEOC’s stated priorities for the next four years:

• Eliminating barriers in recruitment and hiring;

• Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination;

• Addressing selected emerging and developing issues, including 21st century workplace and backlash discrimination;

• Ensuring equal pay protections for all workers;

• Preserving access to the legal system; and

• Preventing systemic harassment.

The following are trends that have been identified by the EEOC that the agency is monitoring and likely will be looking to engage on in some capacity.  Monitoring what the EEOC does with regard to these issues is critical to understanding the development of legal protections for employees in the workplace:

• Qualification standards and inflexible leave policies that discriminate against individuals with disabilities;

• Accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act (PDA);

• Protecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex;

• Clarifying the employment relationship and application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships and the on-demand economy; and

• Addressing discriminatory practices against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, arising from backlash against them from tragic events in the U.S. and abroad.

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