The new President can’t stop commissioners from expanding definitions of what is discrimination.
Regardless of how quickly and forcefully the new Trump Administration acts to lift regulatory burdens, you won’t be able to avoid the Equal Employment Opportunity Commission’s aggressive targeting of employers and expanding the boundaries of what constitutes discrimination under federal law.
As we have pointed out elsewhere, EEOC is an independent agency created by Congress. The commissioners as well as general counsel are nominated by the President to staggered multiyear terms, and their appointments must be approved by the Senate. They cannot be fired by the President; he can only nominate new commissioners when the sitting commissioners’ terms expire.
The only seat currently open was held by Republican Commissioner Constance Smith Barker, who first joined the commission in 2008 under President George W. Bush, and who was renominated by President Obama last July. Trump may choose to withdraw the nomination so he can put his own person on the EEOC, but that will do nothing to alter the current Democrat majority.
The new President’s first opportunity to create a Republican majority on the commission comes this July, when the term of Democrat Chair Jenny R. Yang ends. Even if we could safely assume Senate confirmation, EEOC’s direction won’t change until the second half of the year when the majority of the five commissioners will be Republican for the first time in many years.
Of equal importance is the fact that commission General Counsel P. David Lopez stepped down at the end of December after more than six years in that post, creating an opening for Trump to name someone new to a four-year term as EEOC general counsel.
More Systemic Lawsuits
Last October—when a Hillary Clinton presidency was widely considered inevitable—EEOC announced a new series of enforcement priorities it will focus on for the next five years in what it calls its Strategic Enforcement Plan. Not surprisingly, the agenda includes pushing the envelope issues embraced by the Obama Administration and allies in the Democrats’ coalition, including unions and identity groups.
In recent years EEOC has sought to carve out new areas of policy with class action lawsuits filed against employers. In many of these cases the aim was to establish “systemic” racial and other discrimination instead of just focusing on individual cases. This has drawn fire from members of Congress and in some cases drew stinging and costly rebukes from the courts. But that hasn’t daunted the commission, which in its most recent strategic plan doubled down on a “commitment to a nationwide, strategic and coordinated systemic program” of systemic litigation.
It may surprise you to learn that this extends to that bete noire of labor unions—the “gig” economy—temporary workers, staffing agencies and independent contractor relationships. How does EEOC, an agency charged with attacking discrimination, justify injecting itself into what is a labor dispute over wages and conditions?
In an interesting twist of logic, the commission believes it’s precisely because it is not allowed to involve itself in this issue that it needs to. Independent contractors normally are not entitled to federal civil rights protections, but employees are. Therefore, EEOC believes that the misclassification of these workers unjustly deprives them of this protections and justifies commission involvement.
“It appears that the EEOC will lock arms with the National Labor Relations Board and echo the same refrain, attempting to capture as many workers as possible under the umbrella of joint employment with an eye towards holding as many employers as possible liable under federal civil rights laws,” observes attorney Richard R. Meneghello of the law firm of Fisher Phillips. (Like the EEOC, NLRB board members also are named to set terms and Trump can’t replace them anytime soon).
Looking for Ethnic Discrimination
National origin and religious discrimination are areas receiving greater scrutiny. In a November EEOC guidance for employers it broadly defined “national origin” to cover people who are from a particular country, or who have physical, cultural, or linguistic characteristics of a national origin group.
EEOC’s definition stretches to cover those who are merely descended from immigrants, including possible discrimination by a member of a national group against someone from the same group. This civil rights protection also extends to those who simply appear to come from a certain ethnic background.
Concern over a backlash against immigrants because of their religion as well as national origin has also led to actions protecting non-mainstream religious beliefs. The number of religious discrimination charges filed with the EEOC has doubled over about two decades, from 2% in 1997 to at least 4% in 2015, and probably rose even more during the past year.
Early in 2016 the commission issued a warning concerning discrimination against Muslims in hiring and in the workplace. Later in the year it issued a notice aimed at informing workers who could be victims of this kind of discrimination about what they should look out for in inappropriate behavior by their employers and fellow workers.
In addition to reminding these employees about religious discrimination against practitioners of mainstream religions, EEOC also warned employees the law also protects newer and less common religions, such as Rastafarianism. The commission pointed out that those who don’t believe in religion are protected as well, citing cases where employees were required by their employers to attend Christian prayer meetings.
In regard to expanding its campaign of filing systemic lawsuits against employers, the commission also is looking for cases where it can combine other discrimination charges with accusations that employees suffered retaliation from their employers after filing the original complaints. Last August, EEOC issued its final revision to its 18-year-old Enforcement Guidance on Retaliation, substantially broadening its reach.
In Fiscal Year 2016, sex discrimination cases combined with retaliation charges added to them made up the largest percentage of these kinds of double claims at 46%, followed by race discrimination at 27%, pay discrimination at 13%, age discrimination at 7%, and disability discrimination at 7%. This should give you some idea of the kind of complaints where the commission will look to piggyback more retaliation charges.
The commission’s attempts to stretch the anti-discrimination law aimed at protecting women to also protect gays is now being reviewed by the Supreme Court after it had been blocked by a federal appeals court.
When it comes to jumping on the equal pay for women bandwagon, the commission’s expansive revisions of the EEO-1 reporting form for employers go into effect this year. They are intended to collect data and examine employer compensation practices to establish whether women and ethnic minorities are being shortchanged for performing “comparable work.”
In addition, don’t expect EEOC to back down from opening new fronts just because of a change in presidential administrations. In December the commission issued a notice to employees warning them to watch out for discrimination in the workplace regarding depression, post-traumatic stress disorder and other mental health conditions. It also recently filed several lawsuits againt employers who allegedly discriminated against employees on prescription drugs for valid medical conditions.
This new round of lawsuits and the publication of the commission’s Strategic Enforcement Plan form a clear message to employers, warning them to prepare for a year that will be filled with ever-expanding EEOC enforcement and litigation.