by David James and Joe Schmitt
The Biden administration has been preoccupied with fighting COVID-19, distracting it from broader policy objectives. As a result, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with interpreting and enforcing employment- related civil rights laws, has not yet pivoted substantially from the Trump administration. Change, however, is coming, particularly as more EEOC commissioner positions turn over in 2022.
With the impact of the pandemic still on its mind, the Biden administration has previewed some changes in EEOC priorities. First, the EEOC has noted COVID-19’s disproportional impact on people of color. Consequently, we can expect race and national origin discrimination claims to be an enforcement priority moving forward. Furthermore, the EEOC is concerned about discrimination against, and harassment of, Asians based on beliefs regarding the origins of COVID-19.
Following the mass layoffs and furloughs in response to the economic slowdown, the EEOC seems particularly interested in claims arising out of the hiring context. Industries and employers hit hard by the pandemic will be under scrutiny as they hire back to pre-pandemic levels. Related to that, the EEOC will be on the lookout for pay disparity claims as employees return to work.
Not all forthcoming priorities will stem from the pandemic. For example, in June 2020, the Supreme Court ruled that Title VII of the Civil Rights Act protects employees from sexual-orientation and gender-identity discrimination. This outcome effectively expanded the EEOC’s jurisdiction, as sexual orientation claims were mostly left to the states, which ranged from offering comprehensive protection to no protection. It seems likely that the new EEOC will issue enforcement guidance for this evolving area.
The EEOC probably will try again to expand the scope of employer EEO-1 reporting. Such reporting historically has only included race and gender data, but the EEOC has attempted to require disclosure of compensation data to enable sophisticated pay equity audits and analysis. The Biden administration may attempt to push this forward again.
The commission appears interested in exploring disparate impact claims based on employers’ use of algorithms and other artificial intelligence to assist in winnowing applicant pools and hiring. This comes on the back of the EEOC’s scrutiny of employers’ use of Facebook and other social media to target potential applicants.
Additionally, the commission may take a fresh look at the Older Workers Benefits Protection Act, which impacts how employers structure and execute reductions in force. In particular, it may push for even greater transparency in the decision-making process, despite the frustration from management that current disclosure requirements infringe on employee privacy and are administratively burdensome.
Finally, the Biden administration EEOC will likely turn back to employee classification issues that were center stage during the Obama administration: joint employment and independent contractors.
Joint employment implicates the use of temporary workers, and the EEOC will want to ensure that both the temp agency and its employer-client are equally responsible for employment law compliance. The topic of independent contractors, brought to the public eye through high-profile gig-economy companies like Uber, affects businesses in all industries.
Many federal and state agencies are scrutinizing employers’ use of contractors, resulting in violations and penalties ranging from the Internal Revenue Service to unemployment offices. The EEOC expands its jurisdiction by restricting the use of contractor status, and it is sure to revisit this timely issue.
If any of these priorities strike a chord with you as you evaluate your organization’s compliance, don’t hesitate to reach out to us.
David James and Joe Schmitt are shareholders in the labor and employment group at Nilan Johnson Lewis. Association members are entitled to 60-minute, no-cost, confidential consultations with the attorneys. Call the firm at (612) 305-7500.
This story appeared in the winter issue of Ag Innovator magazine, which published last week. Find it at FarmEquip.org/agi.