Pay Data Collection Plan Needs New Look, EEOC Acting Head Says

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By Kevin McGowan

The “costs and benefits” of employers submitting their workers’ pay data to the EEOC need to be re-evaluated, said Victoria Lipnic, the agency’s new acting chair.

The Equal Employment Opportunity Commission’s completed plan would have employers with 100 or more workers annually submit their summary pay data classified by race, sex and ethnicity.

That “fits perfectly” into the type of pending federal agency actions President Donald Trump wants to put on hold, Lipnic said. Trump designated Lipnic, a Republican who has served on the EEOC since 2010, as the commission’s acting chair Jan. 25.

Lipnic in 2016 opposed the EEOC’s pay data collection plan, but the commission approved it by a 3-2 vote. The White House Office of Management and Budget subsequently cleared the pay data addition to employers’ annual EEO-1 forms.

The EEOC’s three other current commissioners—all Democrats—supported the pay data collection plan, which is slated to take effect March 31, 2018. Any changes would require a commission vote, so further revisions aren’t likely until Republicans have a majority on the five-member panel.

“I look forward to having a conversation with my colleagues” about revisiting the pay data collection plan, Lipnic said Feb. 9 during a panel discussion held at Seyfarth Shaw, an employer-side law firm in Chicago.

The EEOC needs to be “smart” about its regulatory policies and not attempt to impose “30-year-old solutions” on “modern-day problems” in the workplace, she said.

Continuity at the EEOC

Trump in 2017 will get to nominate two new EEOC commissioners as well as a new agency general counsel. All three positions require Senate confirmation.

But it will take some time to fill those posts, and the EEOC continues its work in the meantime, Lipnic said.

Lipnic and her colleagues—Commissioners Jenny Yang (D), Chai Feldlum (D) and Charlotte Burrows (D)—are a “very collegial group” that has worked “in a bipartisan fashion,” she said.

The priorities set out in the EEOC’s most recent strategic enforcement plan probably won’t shift much in the Trump administration, Lipnic said.

The EEOC “remains committed to its core values and core mission” and “that’s not going to change,” she said.

But Lipnic would advocate some tweaks in the agency’s outlook and approach. The EEOC’s name includes the words “employment opportunity,” she noted.

The agency in performing its work should recognize “the dynamic workforce” and employment practices that are “necessary for businesses to be competitive today,” Lipnic said.

The EEOC doesn’t have to be “at odds” with the employer community “over everything,” she said.

Systemic Program Supporter

Lipnic said she’s “very committed” to the EEOC’s systemic program, which puts a priority on investigating and litigating big-impact cases involving employment practices that broadly affect an entire company, industry or region.

It makes sense for the agency to “put resources where it can have the most impact,” she said.

But the EEOC also should pursue “a substantial amount” of individual cases, Lipnic said. Those cases “tell a story” and “can have a broad impact” in terms of publicity and illustrating anti-discrimination principles, she said.

“It can’t be all systemic all the time,” Lipnic said.

The EEOC needs to “take a hard look” at its available resources and evaluate how the systemic program affects the agency’s other work, Lipnic said.

“We have to be strategic about this,” she said.

Systemic litigation doesn’t need to be nationwide in scope, she said. Lawyers representing workers in private class actions now are bringing more targeted, regional lawsuits, Lipnic said.

The EEOC perhaps could consider a similar “course correction” in the size and scope of its lawsuits alleging systemic bias, she said.

Equal Pay, Harassment Called Priorities

Lipnic said she’s “very interested” in equal pay issues, although the EEOC historically hasn’t received many charges or filed many lawsuits under the Equal Pay Act.

“That’s something I would consider a priority,” she said.

An EEOC workplace harassment task force co-chaired by Lipnic and Feldblum completed its work in 2016. The co-chairs issued a report urging employers to “reboot” their harassment prevention efforts.

The task force was just a “first step” by the EEOC, Lipnic said. The agency recently issued a draft enforcement guidance on harassment and is accepting public comments on its proposal through March 21.

The EEOC is urging employers to re-examine their anti-harassment training and reboot their efforts to deter harassment based on sex, race and other protected characteristics.

“We see far too many charges of harassment, especially sexual harassment” even though “there’s a huge industry” devoted to anti-harassment compliance and training, Lipnic said.

The “issues related to harassment are something I care a great deal about,” 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; Christopher Opfer at copfer@bna.com

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