Outlook 2018: Will Agency Shift Priorities On Gay Rights?

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By Jacquie Lee

The Equal Employment Opportunity Commission heads into 2018 poised for a potentially dramatic shift in priorities, business and employee advocates tell Bloomberg Law.

Among 2017’s highlights were the agency’s 16 percent reduction of its case backlog, new harassment prevention training, and the launching of a public portal for online charge inquiries. As Victoria Lipnic (R) prepares to step down as the commission’s acting chair, employment attorneys have questions about the nominees for the agency’s open slots.

Nominees Janet Dhillon and Daniel Gade will create a Republican majority on the commission for the first time in nine years if they win Senate approval. That vote hasn’t been scheduled, but they’re expected to join the agency.

Until then, practitioners remain unsure about a variety of the agency’s policy issues. High on the list of concerns is whether the agency will continue to view Title VII as covering sexual orientation and gender identity. The EEOC’s current position is that it does, but the Department of Justice under the current administration has backed away from that view.Title VII of the 1964 Civil Rights Act doesn’t use the terms sexual orientation or gender identity on its list of protected classes, but the commission interprets the ban on sex discrimination as including them.

Neither Dhillon nor Gade committed to upholding the EEOC’s current position during their Senate Health, Education, Labor & Pensions Committee hearing in September. Both said it was the court’s job to sort that out. The U.S. Supreme Court declined Dec. 11 to hear Evans v. Georgia Regional Hospital, which could have clarified the issue. Whether the justices will hear similar, potentially clarifying cases isn’t known.

Will Agency Flip Its Position?

Employee advocates will be monitoring the agency’s sexual orientation discrimination position closely to see “whether there will be any attempt to walk back or reverse anything the EEOC has done on those issues,” Emily Martin, general counsel at the National Women’s Law Center, told Bloomberg Law.

The EEOC decided sexual orientation was protected under Title VII in 2015 through the Baldwin v. Dep’t of Transportation case, in which a man was denied a job because he was gay. The agency first voted whether to investigate that case in 2012. In that vote, then-Chair Jenny Yang (D) and Commissioners Chai Feldblum (D) and Charlotte Burrows (D) sided in favor of using Baldwin as a vehicle to protect sexual orientation under Title VII. Lipnic (R) and then-Commissioner Constance Barker (R) voted “No.”

Yang will exit the agency Jan. 3. After she leaves, the agency might have the votes necessary to shift its position to align with the DOJ’s. Lipnic wouldn’t say how she’d vote if the EEOC is presented with another case that challenges its current position.

Both the DOJ and the EEOC have “plausible” legal stances on the issue, Lipnic told Bloomberg Law.

The Justice Department’s position in Zarda v. Altitude Express was that Title VII’s prohibition on discrimination based on “sex” doesn’t encompass discrimination based on sexual orientation.

“I said at the time ‘That’s a perfectly principled legal argument to make,’” Lipnic said about the DOJ’s view of Zarda. “I have also thought from the beginning it’s a perfectly plausible legal argument that the EEOC has been making—beginning with the Baldwin case, even though I voted against the Baldwin case—that it in fact is covered.”

It will be hard to predict exactly what the nominees will do going forward “especially because they’re outside-the-beltway folks,” Rae Vann, the general counsel for the Center for Workplace Compliance, told Bloomberg Law.

Lipnic says she expects that Dhillon and Gade will want to review the agency’s current strategic enforcement plan but couldn’t predict “what their views will be on any substantive matters.” A general counsel for the agency hasn’t been nominated, and many in the employment law community think Dhillon will be confirmed as chair before any candidate is officially named.

Other issues the EEOC is likely to focus on in 2018 include sexual harassment, pay data collection, and regulation of corporate plans that encourage workers to participate in wellness programs.

Sexual Harassment, Pay Data

The EEOC has long been fighting sexual harassment, but in a post-Weinstein working world, employers have made renewed efforts to clean up toxic work environments.

“We’ll see a substantial increase both in charges filed and, toward the latter part of fiscal year 2018, lawsuits brought by EEOC alleging sexual harassment,” Eric Janson, a partner at Seyfarth Shaw LLP, told Bloomberg Law.

Others hope the agency continues to build on its sexual harassment prevention guidelines and provide clearer guidance, more informational resources, and a continued public education effort, Martin said. “A lot of that work still remains to be done and that is another place where I am hopeful that the EEOC will really be focusing on in the next year.”

Martin also hopes the agency will continue its effort to collect national pay data to stem the gender pay gap. The EEOC planned to expand its forms to include summary pay data as a means of evaluating wage discrimination. The Office of Management and Budget put the plan on hold Aug. 29, citing concerns about overburdening employers.

That prompted the National Women’s Law Center and the Labor Council for Latin American Advancement to file a lawsuit Nov. 15 against the OMB and the EEOC. Martin said she expects the agencies to ask for the lawsuit to be dismissed when they respond to the complaint.

Employers’ Wishlist

Employers’ wishlists include clarification about reasonable accommodation guidelines under the Americans With Disabilities Act. Currently, the rules are “fraught with pitfalls” that make it arduous and expensive for employers to prove an employee’s accommodation request is too difficult to fulfill, Janson said.

“That might be one of those areas where there’s additional clarity from a Republican-controlled commission,” he said. “And perhaps they’ll lessen some of that burden on employers navigating these issues.”

Employers also hope the agency will eliminate systemic litigation quotas, which would cut down on any potential incentive “for investigative staff to try to build systemic cases where there’s no basis for doing so,” Vann, from the Center for Workplace Compliance, said.

Wellness Revisited

The EEOC took the first step toward updating its regulations for wellness programs by proposing amendments to rules that would clarify two nondiscrimination laws.

The agency proposed amending regulations on the ADA and the Genetic Information Nondiscrimination Act. The aim is to clarify how companies can motivate workers to lead healthy lives without forcing them to reveal personal medical information that could lead the employer to violate federal laws. The proposal is part of the EEOC’s Fall 2017 Regulatory Agenda.

The amendments are in the “proposed rule stage” and will be open to public comment starting in August. That comment period ends in October, and the agency will have to reveal its new regulations by October 2019.

To contact the reporter on this story: Jacquie Lee in Washington at jlee1@bloomberglaw.com

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

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