Q&A: Trumpian EEOC Conjures Up Zen Outlook

Zen Pose

A Zen parable made popular by a Tom Hanks movie may offer some insight into how the plaintiffs’ bar views an Equal Employment Opportunity Commission under President-elect Donald Trump’s administration.

The Zen story “We’ll See” depicts a set of conversations between an old man and his neighbors about the nature of unintended consequences. The tale was recited in a movie scene of the political satire “Charlie Wilson’s War.”

Rachel Geman, a partner in Lieff Cabraser Heimann & Bernstein, LLP's New York office, mentioned the Zen tale when Bloomberg BNA asked her to respond to questions about noteworthy 2016 litigation involving the EEOC and its enforcement in the Trump era. Geman’s firm represents workers in labor and employment disputes against employers. Below are edited excerpts from her Dec. 21 e-mailed response.

Bloomberg BNA: In assessing 2016, what stood out to you as the most significant moment or development in the EEOC's enforcement and litigation?

Geman: The EEOC filed its first lawsuits challenging sexual orientation discrimination as sex discrimination. Last month, a defendant’s motion to dismiss one of these cases, EEOC v. Scott Medical Health Center, P.C., was denied in full.

The Scott Medical court is hardly the first to treat sexual orientation discrimination as cognizable under Title VII [of the 1964 Civil Rights Acts], nor is this year the first when the EEOC has taken this position. However, this is the first time the EEOC has brought actual lawsuits—law applied to real facts and real people and real harm—and that precedent is important to establish.  A body of actual jurisprudence should be, and is being, established.

Bloomberg BNA: Which court case litigated by the EEOC will you be closely monitoring in 2017 and why?

Geman: I’ll be watching cases involving joint employment, including how the EEOC responds to the forthcoming decision in the National Labor Relations Board’s Browning-Ferris case before the U.S. Court of Appeals for the District of Columbia Circuit. In that case, the EEOC submitted an absolutely terrific amicus brief supporting the NLRB’s newly-articulated (albeit historically grounded) joint employment test. 

The brief featured a discussion of how that test was consistent with the EEOC’s own broad articulation of the joint employment standard. Given the long-standing nature of the EEOC’s own broad joint employment standard, it would be particularly surprising (and unfortunate) if there were a pivot, or a stated intention to narrow the standard.

Other cases to watch are those involving religious discrimination, especially involving Muslim employees, and transgender issues. 

Bloomberg BNA: What will you keep an eye on when it comes to the EEOC under a Trump administration?

Geman: Various things are on my radar, starting with the fate of the EEOC’s summary pay data collection initiative.

As part of the EEOC’s emphasis on pay equity – which itself is embedded in a broader legislative and regulatory focus at the federal, state and local level on compensation issues and roadblocks to pay equity – the commission announced the approval of a revised and more fulsome and informative EEO-1 at the end of September, explaining at that time that it was setting March 31, 2018, as the first reporting date. The information in the previous form wasn’t sufficiently granular to be of optimal use in various respects. 

Many employers either already examine similar data as part of ongoing monitoring, which should happen regardless, or likely have already implemented or enabled the infrastructure to capture the required information. That said, ideally we would already have had one reporting cycle so companies would be accustomed to reporting this out, and the agency to working with the data. 

As it stands, a lot can happen between Jan. 20, 2017, and March 31, 2018. The objections many employers raised to reporting hours worked and to using W-2 income as the measure of pay may find a welcome audience. Although, from the plaintiffs’ perspective, neither of those obligations are unduly burdensome, especially given the importance of the information. 

A gutting or repeal of the pay data reporting requirements would be unfortunate. Gender and racial pay gaps are recursive (indeed self-perpetuating in part), discouraging and real.   

Bloomberg BNA: Any final thoughts on 2016 and the upcoming year regarding EEOC enforcement and litigation?

Geman: The Zen parable “We’ll See” comes to mind. Some foresee that the EEOC will be relatively inactive by fiat but, on the plus side, that this will further galvanize the private bar. 

We feel pretty energized already, but there is always, always, always more to do. And no organization the size of the EEOC, with such a deep bench of expertise, so populated with lawyers and staff who have dedicated their lives to principles of equal employment, is monolithic.    

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