HR INSIGHTS
EEOC PURSUES OBAMA ADMINISTRATION AGENDA
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Richard I. Lehr, Lehr Middlebrooks Vreeland & Thompson, P.C.
ssumptions that the U.S. Equal Opportuni- ty Employment Commission (EEOC) under a Republican administration would be more favorable to business than under a Democratic administration are not necessarily correct. For example, during President George W. Bush’s two terms, the EEOC filed an average of 400 lawsuits a year and filed fewer than that in only two of those years. During President Obama’s two terms, only twice did the EEOC file more than 200 lawsuits in a year, and during fiscal year 2016, it filed just 114, the lowest in the past 30 years. Furthermore, the rate of “cause” determinations also fell to a record low during the Obama administration. With that preface, let’s review the actions of the EEOC thus far during President Trump’s administration. Commissioner Victoria Lipnic (Republican) was appointed acting chair of the commission. She was the only commissioner who voted against the EEOC’s revised EEO-1 reporting requirement to include pay bands. Yet, she has suggested that although she favors “tweaking” that requirement, she does not envision the commission revoking it. One of Trump’s objectives is to reduce the burden of federal regulation on business, with an out- come to enhance job creation. The EEOC esti- mated that it would take an employer 31 hours to comply with the new EEO-1 requirements, while a Society for Human Resource Manage- ment survey said it would take 30 hours. That is not the kind of regulation that is considered a burden to job creation.
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Lipnic has outlined an aggressive agenda for the EEOC, which it is pursuing today. For example, this year marks the 50th anniver- sary of the Age Discrimination in Employment Act. The EEOC is focusing on age discrimina- tion in hiring, as evidenced
32 THE LANDSCAPE PROFESSIONAL > JULY/AUGUST 2017
by the lawsuit it filed on May 17 against Ruby Tuesday, Inc. (S.D.Fla). The EEOC alleges that the employer discriminated against a 59-year- old candidate for a managerial position be- cause it wanted to “maximize longevity and minimize premature resignations.” In March, the EEOC and Texas Roadhouse, Inc. agreed to $12 million settlement of a lawsuit based on age discrimination against a class of over- 40-year olds who applied for server and host positions.
An issue pending in federal courts is wheth- er the Age Discrimination in Employment Act permits a discriminatory impact theory for re- jected job applicants. In a discriminatory impact claim, the essence of the allegation is that an employer’s apparently neutral business practice has a disproportionate effect on one protected group compared to others. In the case of Rabin v. PricewaterhouseCoopers (PWC), the claim is that the company’s emphasis of on-campus recruiting has a discriminatory impact based upon age, as those in the age-protected group are generally long past their college years. In its recent FY16 Corporate Responsibility Report, PWC stated that the average age of its work- force is 27 and that 75 percent of its employ- ees said the PWC job was their first job out of college.
In addition to focusing on age discrimination,
the Trump administration EEOC will aggres- sively pursue pay equity claims. Pay equity based on gender has been the primary focus nationally, but the EEOC will also pursue pay equity based on race and ethnicity. Further- more, discrimination based on pregnancy, such as denial of leave or termination of individuals who are pregnant, will be high on the commis- sion’s agenda under the Trump administration. Employers are well experienced with the concept of “managing expectations.” This is particularly important as we move forward with the Trump administration EEOC. We do not foresee the administration engaging in any policy action that will divert the EEOC from its strategic enforcement direction. 7
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