Seyfarth Synopsis: The Trump Presidency will undoubtedly impact how the EEOC pursues its enforcement agenda. Although it is impossible to predict exactly what changes are in store, we think that it is a good bet that they will be driven by changes in personnel, resources, and substantive and procedural focus.
President-elect Trump is on his way to serving his first term in the White House. For at least the first two years of Trump’s administration, he will have a Republican majority in both houses of Congress. This has left employers (and our loyal blog readers) wondering how a Trump Presidency will impact the EEOC.
We have compiled our thoughts as to the top five ways that this political development could affect the agency and its enforcement priorities.
Changes In Personnel: President Trump will have the opportunity to appoint several high-ranking personnel that could, in turn, impact staffing decisions at all levels in the EEOC chain of command. Jenny Yang was named Chair of the EEOC by President Obama on September 1, 2014. Chair Yang has taken an active role in steering the strategic direction of the EEOC, including a focus on pay equity and a vigorous move to apply Title VII to workplace discrimination claims based on gender identity and sexual orientation. President Trump will have the opportunity to designate a new Chair. In addition, the EEOC’s General Counsel, David Lopez, announced in October that he would be leaving the EEOC in December. Mr. Lopez has faced an intense level of scrutiny by Republican members of Congress for the way that the EEOC has focused on and pursued systemic cases, especially against employers where no aggrieved person has filed a discrimination charge. His impending departure means that President Trump will have an early opportunity to appoint his successor. These leadership changes at the highest levels of the EEOC will undoubtedly impact the direction the agency takes in the future.
Change In Resources: The EEOC is likely to face tighter budget scrutiny under a Trump administration. In the Bush administration, for example, the EEOC’s budget was held flat for years. If this trend is repeated or accelerated, then the agency may have to find creative ways to do more with less. Historically, the EEOC adapted by focusing its enforcement efforts on systemic litigation, meaning targeting high-impact cases that address policies or patterns or practices that have a broad impact on a region, industry or entire class of employees or job applicants. The theory was that large, high-profile cases, settlements, and judgments would have a greater deterrent effect, and would therefore affect a larger number of workers and industries. If the incoming administration and Congress tighten the EEOC’s budget again, the agency may be forced to find new and creative ways to adapt its enforcement program (and its own political viability) to the new reality.
Change In Substantive Focus: Over the past two years, the EEOC has made equal pay a top priority. Incoming Vice-President, Mike Pence, however, has publicly opposed new pay equity legislation. On February 16, 2016, the EEOC issued proposed regulations that would involve major revisions to the Employer Information Report (EEO-1). Those changes are expected to go hand-in-hand with an increased focus on pay equity issues. The new reports would require employers to provide aggregate compensation data and hours for all employees organized by 10 EEO-1 categories, 7 sex and race/ethnicity categories, and 12 specified pay bands. The EEOC approved the new EEO-1 reports along party lines. The changes are set to become effective in March 2018. Under any new Republican-appointed Commissioners, the EEOC could seek to revise or rescind these new regulations before they come into effect.
Change In Procedures: Under General Counsel David Lopez, the EEOC delegated individual EEOC district offices significant autonomy to oversee their litigation agenda and to develop their enforcement priorities. Given the level of criticism that Congress has levied against the EEOC, it would not be surprising if a Republican-led Congress subjected the EEOC’s enforcement program to heightened scrutiny and oversight. Legislative proposals are already out there. On March 24, 2015, the Subcommittee on Workforce Protections of the House Committee on Education and the Workforce held a hearing to examine a number of legislative proposals intended to provide greater transparency and accountability to the EEOC, including one proposal that would require the EEOC to make “good faith efforts to endeavor” to resolve cause findings by “bona fide conciliation.” Other proposals have called for the EEOC to focus on its enormous backlog of unresolved cases. Under a Republican administration, some of those proposals could ripen into actual legislation.
Unsettled Times Translate To Unsettled Action: The Trump Presidency will certainly impact the EEOC, but it is not yet clear what those changes will be or how they will impact employers. This state of flux could precipitate short-term EEOC reaction. The administration change could actually galvanize the EEOC to launch pending litigation on an accelerated timetable while it is still protected by the Obama Presidency, especially cases that are considered high-value for accomplishing the EEOC’s current set of priorities. Historically, the EEOC has doggedly pushed the edge of the envelope despite shifting political winds, and the new Administration change may actually result in more, not less, enforcement activity in the short term. On the other hand, the events of this week could make some EEOC regions more cautious in taking on additional litigation given the uncertainty of whether future resources will be available to take those cases the distance.
Implications For Employers
With the White House and both chambers of Congress poised to shift to Republican control, there is every reason to believe that significant changes are in store for the EEOC. Exactly what those changes will be remains to be seen. What we have seen in the past – and what we are likely to see again – is that the EEOC will remain committed to driving forward its enforcement priorities, even if that means changing tactics and adapting its approach. We will continue to monitor this developing situation....