Trump’s Win May Jeopardize EEOC Pay Data Collection

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By Kevin McGowan

Nov. 9 — Donald Trump’s election as president puts into question the EEOC’s recently completed plan to collect pay data from many employers and federal contractors.

Business representatives and congressional Republicans vigorously opposed the Equal Employment Opportunity Commission’s revision of the annual employer information report, or EEO-1 form, to require employers with 100 or more workers to report summary compensation data categorized by race, gender and ethnicity.

The five-member EEOC approved the new EEO-1 form on a 3-2 vote along party lines.

Trump will get to designate a new EEOC chair and sometime during 2017, the commission will flip to a 3-2 Republican majority. Once that change occurs, the EEOC could revisit the pay data collection plan, which currently is scheduled to take effect March 31, 2018.

It may be “logistically difficult,” said James Plunkett, the U.S. Chamber of Commerce’s director of labor law policy. But expect a Republican-majority EEOC to rescind or revise its EEO-1 form to remove employers’ obligations to report pay data, he told Bloomberg BNA. Plunkett and others spoke with Bloomberg BNA in the days leading up to the election about the impact of a Trump victory on the EEOC.

No dramatic changes at the commission would take place right away, said Michael Eastman, senior counsel and vice president for public policy at the Equal Employment Advisory Council, a Washington association that represents large employers.

But a Republican administration probably will take “a fresh look” at the agency’s pay data collection plan, Eastman told Bloomberg BNA. It’s “entirely possible” a Republican-majority EEOC would make some changes before the March 2018 effective date, he said.

Priorities, Resources Could Shift

The EEOC’s enforcement priorities and litigation choices also could shift in a Republican administration, Plunkett said.

The agency revised its strategic enforcement plan in late September, again by a 3-2 vote. That plan, which sets priorities through fiscal 2021, said the commission’s new focuses will include gig economy issues, including independent contractor arrangements and joint employer issues.

It said the agency also will focus on “backlash discrimination” against Muslims, Sikhs, Arabs and other persons who are perceived to be members of those religious or ethnic groups.

Trump early in his term will get to nominate a new EEOC general counsel, as current General Counsel P. David Lopez is leaving the agency in December.

A Republican-nominated general counsel might be less aggressive in pursuing employers under novel theories of liability under Title VII of the 1964 Civil Rights, the Americans with Disabilities Act and other federal anti-discrimination laws.

The Trump administration might make workplace civil rights less of a priority than the Obama administration did and seek to freeze or reduce the EEOC’s budget and staffing.

A president’s party affiliation historically “comes into play” when deciding on the commission’s funding, investigations and enforcement priorities, said Vicki Shabo, vice president of the National Partnership for Women and Families.

During President George W. Bush’s administration, for example, the EEOC generally didn’t pursue the “robust enforcement” intended under Title VII and the other anti-discrimination laws, Shabo told Bloomberg BNA.

Wellness Rules Also Under Scrutiny

A Republican administration also could seek EEOC “institutional reforms,” Plunkett said.

That might include giving the five commissioners more control over the general counsel’s litigation choices and putting more teeth into Title VII’s requirement that the commission try to conciliate, or settle, discrimination charges before filing lawsuits, he said.

Other potential areas of scrutiny include the EEOC’s rules governing wellness program incentives under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

Business groups want at least to tweak those rules to bring the EEOC more into line with the Affordable Care Act’s regulations that allow employers to offer broader incentives for employee participation in employer-sponsored wellness plans, Plunkett 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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