EEOC Acting Chair Lipnic Skeptical About Pay Data Plan

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By Kevin McGowan

EEOC Acting Chair Victoria Lipnic (R) supports the agency’s systemic case approach and won’t change its advocacy for federal protections for LGBT workers. But she remains skeptical about the agency’s plan to require employers to submit their summary pay data.

Lipnic voted against the Equal Employment Opportunity Commission’s now-completed plan to revise the annual employer information report, or EEO-1 form, to require companies with 100 or more employers to report summary pay data categorized by employees’ gender, race and ethnicity.

Speaking in New Orleans March 30, Lipnic reiterated her doubts that the new EEO-1 form’s purported benefits outweigh the potential costs on employers. The new form is set to take effect on March 31, 2018.

The Chamber of Commerce and 27 trade associations in February asked the Office of Management and Budget to reconsider its 2016 approval of the revised EEO-1 form under the Paperwork Reduction Act.

Awaiting the OMB’s Call

The EEOC hasn’t heard from the OMB since the Chamber filed its reconsideration request, Lipnic said at the American Bar Association’s National Conference on Equal Employment Opportunity Law.

But she “fully expects” the OMB will contact the commission soon about the EEOC’s cost estimates regarding the EEO-1 pay reporting requirements. “Where that leads, I don’t know,” she said.

The Chamber’s petition under the Paperwork Reduction Act appears to be unique and no one’s really sure how the OMB will respond. It’s unclear if the OMB would reverse its prior approval or return the matter to the EEOC for reconsideration, Lipnic said.

In its letter to the OMB, the Chamber contended the EEOC vastly understated the time and money employers would have to spend to complete the new EEO-1 form.

“To say I’m dubious of the time estimates would be an understatement,” Lipnic said.

OMB did not immediately respond to a request for comment March 31.

Equal Pay Push Continues

Despite her doubts about the revised EEO-1 form, Lipnic said she’s “absolutely committed” to the EEOC push for equal pay.

The “occupational segregation” issue, in which women and racial minorities predominate in lower-paying job categories, is a particular concern, Lipnic said.

She also said it’s questionable that if the government doesn’t force employers to analyze their compensation systems to identify and address pay disparities, employers would do it on their own.

“I’m not sure this is the right device, but I do have that concern that employers won’t do it unless forced to,” Lipnic said.

Support for LGBT Rights

The EEOC will keep advocating for federal anti-discrimination protection for lesbian, gay, bisexual and transgender workers, Lipnic said.

The EEOC’s view is that Title VII of the 1964 Civil Rights Act prohibits discrimination based on sexual orientation and gender identity as forms of unlawful sex discrimination. No federal appeals court yet has ruled that Title VII bars bias based on sexual orientation.

Three federal appeals courts, including the full US. Court of Appeals for the Seventh Circuit, currently are considering cases raising that issue.

Meanwhile, the Trump administration has sent mixed signals on LGBT anti-discrimination protections.

The Justice Department and Education Department withdrew Obama administration guidance that said public schools must allow transgender students to use the bathrooms consistent with their gender identity.

President Donald Trump, however, said he wouldn’t rescind an Obama administration executive order that said federal contractors can’t discriminate against LGBT workers.

The EEOC will continue processing bias charges brought by transgender workers, including those regarding bathroom access issues, Lipnic said.

Whether Title VII prohibits bias based on sexual orientation is “teed up” for the courts to decide, she said.

She expects the EEOC will continue to file briefs supporting LGBT individuals seeking anti-discrimination protection under Title VII.

The EEOC will continue to “take in and investigate” Title VII charges alleging bias based on sexual orientation or gender identity, Lipnic said.

Systemic Support, With Caveat

Lipinic supports the EEOC’s systemic program, which focuses on developing and litigating big-impact cases potentially affecting large groups of employees in a company, industry or geographic area.

That assurance comes with “one caveat,” she said.

Given anticipated budget constraints in the new administration, the EEOC must be “very conscious” of how it allocates resources, she said.

Systemic cases can be labor-intensive and costly. “That’s something that going forward, we will have to be cognizant of,” Lipnic said.

The EEOC’s priorities are “set by vote of the commission,” said Lipnic, who voted against the agency’s most recent strategic enforcement plan. “I’m very respectful of how the EEOC operates,” she said.

Unless the EEOC votes to change something, “that structure should be respected,” Lipnic said.

But “some changes in approach on some policy matters” can be expected after the Trump administration is able to put a majority of Republican appointees on the five-member commission, she said.

“At some point, there will be a different approach, but I hope and expect we will continue to operate in bipartisan fashion,” Lipnic said.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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