EEOC Will Keep Big-Case Focus but May Trim Sails

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By Kevin McGowan

The EEOC is likely to continue developing and litigating potential big-impact cases but might scale back on pursuing novel legal theories in court, according to management lawyers who track agency trends.

The commission’s systemic program, which emphasizes bias cases regarding employment practices that broadly affect an employer, industry or geographic region, “won’t disappear” in the Trump administration, said Barry Hartstein, a partner with Littler Mendelson in Chicago.

But “some nips and tucks” to the Equal Employment Opportunity Commission’s litigation choices and strategies might be necessary to placate a Republican Congress that controls the agency’s purse strings, Hartstein told Bloomberg BNA Jan. 10.

If the EEOC gets “too creative” with its legal theories, it will be “asking for trouble” from congressional Republicans who previously have questioned the agency’s priorities and tactics, Hartstein said.

Littler Mendelson last month published a report on the EEOC’s systemic initiative, written by Hartstein, that discusses trends in the agency’s big-impact case program.

Hiring Barriers Remain a Focus

Of the EEOC’s 18 systemic lawsuits filed during fiscal 2016, 11 involved Americans with Disabilities Act claims, the report said.

There’s “no reason to believe” the EEOC’s focus on disability bias issues will wane in 2017, Hartstein said.

Employers also should expect a continued EEOC focus on alleged discriminatory barriers to hiring and pay discrimination, he said.

Age discrimination litigation could be a growth area, given workplace demographics and some recent court decisions that favor older workers, Hartstein said.

Expansion of LGBT Protections?

The EEOC’s position that Title VII of the 1964 Civil Rights Act covers sexual orientation discrimination now is in the courts’ hands, he said.

A Nov. 30 oral argument in the U.S. Court of Appeals for the Seventh Circuit “gave every indication” its judges might be ready to overturn circuit precedent that Title VII doesn’t prohibit bias based on sexual orientation, Hartstein said.

The federal appeals courts for the Second and Eleventh circuits also are considering whether Title VII’s ban on sex discrimination includes sexual orientation.

Hartstein said he wouldn’t be surprised if “we’re going to start to see an expansion” of protections for LGBT individuals under Title VII.

But an EEOC seeking to maintain “appropriate funding” from Congress might be well-advised not to initiate cases in which no discrimination charge has been filed, Hartstein said.

The agency also might step back from pushing novel legal theories challenging standard employment agreements, he said.

Hartstein is co-chair of Littler’s equal employment opportunity and diversity practice.

New Enforcement Plan on Tap

The EEOC in 2016 issued a revised strategic enforcement plan setting its priorities for fiscal years 2017 through 2021. The agency reiterated the six broad substantive areas of enforcement focus it had identified in its FY 2013-2016 plan.

But it also mentioned some new emphases, such as looking at “complex employment relationships” found in the new or “gig” economy.

The EEOC’s revised enforcement plan might have been the agency’s “biggest event” in 2016, said Matthew Gagnon, a partner with Seyfarth Shaw in Chicago.

Gagnon and Christopher DeGroff, also a Seyfarth Shaw partner in Chicago, discussed the firm’s annual report on the EEOC’s litigation activities, which includes some forecasts for 2017.

Some congressional Republicans and employer representatives questioned how the EEOC interpreted the “emerging issues” category in its prior enforcement plan, Gagnon told Bloomberg BNA Jan. 4.

For example, the agency’s push for courts to recognize transgender status and sexual orientation as protected categories under Title VII raised some eyebrows, Gagnon said.

But “I don’t see any signs” the EEOC in 2017 is going to drop its emphasis on litigating LGBT discrimination issues, Gagnon said.

EEOC and the ‘Gig’ Economy

The EEOC “may be a little late to the party” on new economy issues, Gagnon said. The Labor Department and National Labor Relations Board in recent years took the lead in litigating employee classification and joint employer issues, he said.

The question on potential discrimination in the “gig economy” is how exactly the EEOC will weigh in and assert itself, Gagnon said.

More Incentives to ‘Clean House.’

The agency’s stance during the Obama administration was to “push the edge of the legal envelope,” DeGroff told Bloomberg BNA.

The EEOC during the Trump administration might be “retrenching somewhat” and advocating a “more traditional reading” of Title VII and other federal anti-bias laws, DeGroff said.

Senate Republicans were “openly hostile” to the EEOC’s enforcement and litigation stance during the Obama administration, he said.

The EEOC enters 2017 “somewhat vulnerable” to congressional criticism because its enforcement numbers dropped in fiscal 2016 while its case backlog remained “roughly the same,” at more than 70,000 pending discrimination charges, DeGroff said.

The EEOC might be more inclined to “clean up its own house” by trying harder to reduce its backlog, develop more cases based on charges that are actually filed and be less aggressive in litigation, he said.

Budget Likely to Stay Flat

No “dramatic shifts” in the EEOC’s policy positions are likely in the short term, DeGroff said.

Chair Jenny Yang (D) plans to remain as a commissioner after Donald J. Trump as president replaces her as chair with a Republican appointee, DeGroff said. Yang’s EEOC term expires on July 1. That means Democrats will retain a majority on the five-member commission for at least the first half of the year.

But the EEOC even early in the new administration might “attempt to make a more efficient use of resources,” DeGroff said.

The EEOC’s budget probably will remain “flat” initially and after that, Congress could put conditions on agency funding increases, DeGroff said.

But he doubts the Trump administration would slash the EEOC’s budget.

Politically, it “doesn’t look good” to have the “legs cut out” from a federal civil rights agency, DeGroff 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

For More Information

The Littler Mendelson report is available at http://src.bna.com/llD and the Seyfarth Shaw report is available at http://src.bna.com/llE .

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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