Predictions about the EEOC's Post-Inauguration Enforcement Efforts: Will the New Administration Reign in the Regulators?01.20.17
In December 2012, the U.S. Equal Employment Opportunity Commission (EEOC) adopted a four-year Strategic Enforcement Plan (SEP) for 2013-2016, laying out its upcoming enforcement priorities and strategies. In October 2016, when many anticipated Sec. Hillary Clinton would be the next President, the EEOC adopted a new four-year SEP for 2017-2021. President Trump's victory in November, however, has changed the political landscape and will no doubt bring changes to the regulatory landscape as well. And, while President Trump has commented publicly about some government regulations that touch on employment (most notably the Affordable Care Act and the minimum wage), neither he, nor his close advisors, have commented substantively on federal enforcement of anti-discrimination laws or any directives that may be given to the EEOC by the incoming administration.
So what should employers predict from the EEOC under the Trump administration?
A Change in Leadership
The first likely order of business for the Trump administration with respect to the EEOC will be to change its leadership. David Lopez's resignation in December 2016 created a vacancy for the seat of General Counsel. And, in July 2017, EEOC Chair Jenny Yang's term will end. Though President Trump has not yet announced any plan to replace either, his pro-business rhetoric during the campaign and pro-business cabinet choices suggest Lopez and Yang's successors will follow the same ideology. With that, we may see the EEOC dial back the more aggressive aspects of its recent initiatives.
Back to Basics
If the Trump administration adopts the current stance of congressional Republicans regarding the EEOC, then employers can anticipate a directive for the Commission to get "back to basics" in enforcing federal anti-discrimination laws and to dial back its current efforts in attempting to expand the scope of federal anti-discrimination laws. Last Spring, Sen. Lamar Alexander sponsored the "EEOC Reform Act" (S.2693), which would require the EEOC to use its resources to address its substantial backlog of charges (approximately 75,000) and, as Sen. Alexander noted, "force the agency to focus on its core mission." The effect would likely be fewer resources being devoted to expanding EEOC enforcement in areas like pay discrimination and LGBTQ rights (discussed below), and a refocusing on investigation and enforcement of more traditional employment discrimination claims.
Let Private Litigants Take the Lead on Developing the Law on LGBTQ Protections
Last year, a growing number of federal lawsuits were filed challenging alleged discrimination based on sexual orientation or gender identity and contending that the full panoply of LBGTQ characteristics fall within Title VII's existing prohibitions on discrimination based on gender. The EEOC has been very active in this area, and many of the pending cases were filed as enforcement actions by the EEOC. Consistent with a potential renewed focus on the EEOC's "core mission," it is reasonable to anticipate that the EEOC may scale back its advocacy in this developing area of the law, especially now that the courts are starting to weigh in. If federal courts continue what appears to be the growing trend of recognizing current LGBTQ protections in Title VII, the result may very well be fewer EEOC enforcement actions, but an increasing number of private lawsuits.
Unwind New EEO-1 Reporting Requirements
Since 2015, the EEOC has been developing new EEO-1 reporting requirements that would substantially increase the amount of data employers with 100 or more employees would be required to submit for the ostensible purpose of identifying issues with pay equity. Many commentators noted the substantial burden and cost these new reporting requirements would impose on businesses. The new regulation was finalized in September 2016 with the deadline for compliance set for March 31, 2018. Given President Trump's general stated position of reducing regulations, especially where they result in a substantial burden on businesses without a clear public benefit, the new EEO-1 reporting regulation looks ripe for being undone.
Shrink Overall Enforcement Efforts
It comes as no surprise that the EEOC's enforcement efforts require a significant operating budget. With few exceptions, Congress has increased the EEOC's operating budget each year, but, for several years during the Bush administration (2003-2008), the increases were negligible, and the EEOC was placed under a hiring freeze. If the Trump administration follows Republican trends here, we may see the EEOC's budget flat lining and the EEOC again being placed on a hiring freeze. Without the robust operating budget currently approved under the Obama administration ($364.5 million), we likely will see an overall reduction in enforcement efforts.