EEOC Chair to Stay On as Commissioner in 2017

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By Kevin McGowan

Dec. 8 — Jenny Yang (D) plans to stay on as an EEOC commissioner after the incoming president likely replaces her as chair, she told Bloomberg BNA.

That means Democrats will retain a majority on the five-member commission for at least the first half of 2017. A number of initiatives Yang promoted as chair should survive the presidential transition, she said.

The Equal Employment Opportunity Commission the past two years has strengthened its program of developing high-impact bias cases, advanced the rights of LGBT workers under federal law and made it easier for workers and employers to interact with the agency, Yang said.

“We have worked to send the message” to agency employees “that our core work will continue,” Yang said of the transition period after Trump’s election. It’s “critically important for us as an agency” as well as for outside stakeholders to recognize that civil rights enforcement benefits everyone, she said.

Yang’s term as a commissioner expires July 1. Her tenure as chair of the EEOC started in 2014 and likely will end sometime in January after President-elect Donald Trump is inaugurated and designates a Republican as the new commission leader.

Lasting Effects From Pay Data Collection Effort

Employers with 100 or more employees are slated to begin submitting summary pay data categorized by sex, race and ethnicity, starting March 31, 2018. The information would be submitted using a revised employer information report, or EEO-1 form.

The EEOC hopes the new EEO-1 form spurs employers to conduct internal analyses of their compensation systems and correct pay disparities without government intervention, Yang said. The agency also believes the collected data could reveal trends that will help the EEOC and Labor Department better target their anti-discrimination enforcement efforts.

“This is an issue we’re very committed to; it’s been one of our national priority areas for some time,” she said.

Business groups likely will seek EEOC rescission of the pay data reporting requirement in the Trump administration.

Regardless of the new EEO-1 form’s fate, Yang said the agency’s efforts to ensure equal pay and close the gender gap in compensation have made lasting changes.

LGBT Protections Tested in Court

Discrimination claims based on sexual orientation and gender identity have been accepted by the agency since fiscal 2013. However, it's unclear if Title VII of the 1964 Civil Rights Act prohibits such bias.

In two landmark decisions involving federal employees, the EEOC has ruled Title VII’s ban on sex discrimination necessarily prohibits bias based on a worker’s transgender status or sexual orientation.

The EEOC’s views are being tested in the courts. But the agency already has provided substantial relief to those claiming bias based on gender identity or sexual orientation, Yang said.

Over the past four years, the agency received more than 5,100 charges alleging bias based on sexual orientation or gender identity, Yang said. The EEOC’s preliminary numbers show it received 1,779 such charges in fiscal 2016 alone.

In those same four years, the agency has obtained about $10.8 million in monetary relief for victims of lesbian, gay, bisexual or transgender discrimination and resolved 3,476 sexual orientation and gender identity bias charges, she said.

“This is an important area that will continue to evolve,” she said.

Gig Economy Issues

Employment relationships in the gig economy will be a focus for the rest of the decade, the EEOC said this fall in its revised strategic enforcement plan.

The agency already was doing “significant” work about potential bias resulting from the increased use of temporary workers and staffing agencies, Yang said. Sometimes neither the staffing agency nor the company where temporary workers toiled was taking responsibility for basic protections against bias, she said.

The gig economy raises similar concerns that workers aren’t being informed about anti-bias protections, Yang said. Such workers also may be more “vulnerable to various abuses,” which they don’t report for fear of losing their jobs.

Adherence to customer preferences that can cause discrimination is another similarity between the staffing agency cases and the gig economy, Yang said.

There’s “a lot of evolution going on” as businesses explore different models to provide their services, she said.

It is important, “particularly in rapidly growing industries that may start up quickly,” that businesses also pay “sufficient attention” to how they implement and design their employment practices, Yang said.

Follow the Money

One “continuing challenge” is an agency budget that’s remained essentially flat for the past six fiscal years, Yang said.

The agency’s fiscal 2016 budget of $364.5 million was $3 million less than it received in fiscal 2010.

The static budget has pushed the agency to streamline its procedures and use technology to free its employees to spend more time on investigating and resolving bias charges, among other core duties.

During Yang’s tenure as chair, the agency began providing employers and workers charging discrimination with greater digital access.

Workers can check the status of their bias charges online, schedule meetings with agency personnel and take online quizzes to determine if they have a viable claim. Employers can electronically submit their responses to bias charges.

More cases were resolved than charges received in fiscal 2016, Yang said. The EEOC received 91,503 new charges in fiscal 2016, but the agency cut its pending charge inventory by 3.8 percent, Yang said.

The agency’s case inventory, or backlog, stands at 73,508 charges as of Sept. 30.

Yang said it's crucial for her successor as EEOC chair to garner support for more resources and to focus those assets on areas where the agency can do the most good.

The strategic enforcement plan offers a good start on identifying those priorities, she 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

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