EEOC in 2019

By Lehr Middlebrooks Vreeland & Thompson, P.C.

January 25, 2019

This article was prepared by JW Furman, EEO Consultant Investigator, Mediator and Arbitrator for the law firm of Lehr Middlebrooks Vreeland & Thompson, P.C. Prior to working with the firm, Ms. Furman was a Mediator and Investigator for 17 years with the Birmingham District Office of the U.S. Equal Employment Opportunity Commission (EEOC). Ms. Furman has also served as an Arbitrator and Hearing Officer in labor and employment matters. Ms. Furman can be reached at 205.323.9275.

What changes can we expect to see from the EEOC in 2019? Hopefully, some of the changes that were anticipated for 2018 will occur in 2019. This agency unfortunately is caught up in a logjam that is much larger than itself.

The Senate again failed to take action on the nominations of Daniel Gade and Janet Dhillon, leaving two seats on the Commission vacant. Gade withdrew his nomination late in 2018 and the President has not yet named another candidate. Chai Feldblum, who served two terms on the Commission (with Senate approval), was re-nominated in December 2017 for a third term by President Trump, but the Senate never advanced that to a vote. Her term expired and she left earlier this month; no nominee has been proposed for her seat. With only two of the five Commission seats filled, EEOC cannot make policy decisions, approve large contracts, or file amicus briefs. Acting Chair Victoria Lipnic can approve guidance on the application of existing laws and policies,but cannot reinterpret those laws and policies or issue new policies without a quorum. I have seen one report that these powers were delegated before Commissioner Feldblum left but have not been able to confirm it. However, since the Commission did not issue policies on EEO-1 reporting or employee wellness programs when they had two vacancies, I do not expect much policymaking with the current three vacancies.

There are two other key positions that will affect EEOC’s direction for the future. President Trump’s nominee for General Counsel, Sharon Fast Gustafson, has not received a vote by the Senate. While the General Counsel does not vote with the Commission, s/he does provide significant advice and direction. And the term of Commissioner Charlotte Burrows will expire July 1, 2019. There has been no announcement regarding her possible re-nomination. However, like Feldblum, a Senate vote is  required before the end of her term in order for her to remain seated.

Sexual harassment is still in the forefront of the news. As predicted last year, the numbers of EEOC charges and lawsuits filed increased. The agency reported that more than 7,600 sexual harassment charges were filed during fiscal year 2018 (October 2017 – September 2018) and it filed 41 lawsuits alleging sexual harassment. A partnership with the Department of Justice was signed in December, which is expected to allow for faster action on harassment charges against state and local government employers. It is also anticipated that the DOJ will be much more involved in obtaining injunctive relief or temporary restraining orders during EEOC investigations, enabling more aggressive investigations.

While many within EEOC still anticipate that EEO-1 reporting will eventually include some pay data, it has not happened yet. The information required to be submitted still remains the same as that prior to the 2017 proposed changes. But the submission date change remains in effect. As begun in 2018, employers with 100 or more employees and federal contractors with 50 or more employees are required to file EEO-1 reports by March 31. Data for this year’s report can be extracted from any pay period from October through December 2018.

The questions of whether Title VII sex discrimination protections apply to sexual orientation or transgender status likewise have not changed since last year. The Circuit Courts are still split and the Supreme Court has not decided these issues. EEOC’s policies regarding its processing of these charges will not change unless or until the Supreme Court rules or new Commission members are confirmed who decide they should change.

EEOC is mostly closed during the partial government shutdown. It is taking charges and receiving mail but investigations and mediations are frozen. Stakeholders are unable to access its electronic portal to send or receive information or updates. With new charges coming in but none being closed, there obviously will be a huge backlog this year. In order to move this backlog, I am sure that EEOC will be open to settlement proposals on most charges as soon as they reopen.