This week the LGBT community and its supporters won an important case in the Second Circuit Court of Appeals. In Zarda v. Altitude Express, the Court ruled that Title VII’s ban on sex discrimination extends to same-sex, or “anti-gay,” discrimination. In that case, Donald Zarda, a gay skydiving instructor, alleged he was unlawfully fired after a customer complained about him disclosing his same-sex orientation.
On February 12, 2018, the Equal Employment Opportunity Commission (the “EEOC”) approved and released its Strategic Plan for Fiscal Years 2018-2022. Congress requires government agencies like the EEOC to formulate strategic plans every four years and post the plans on their website. These plans must include general goals and objectives of the agency and a description of how those goals will be achieved. In a press release introducing the plan, the EEOC indicated the plan “will serve as a framework for the Commission in achieving its mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.”
On November 15, the EEOC issued its 2017 annual Performance and Accountability Report, providing details and statistics regarding the Commission’s performance and goals during the period of October 1, 2016 to September 30, 2017.
The day employers have been waiting for, has finally arrived. The government has indefinitely stayed the requirement that companies begin reporting “Component 2” wage data in their EEO-1 Reports. Companies around the country are breathing a collective sigh of relief.
On June 14, 2017, the Equal Employment Opportunity Commission held a public meeting entitled “The ADEA @ 50 – More Relevant Than Ever,” to commemorate the Age Discrimination in Employment Act’s 50th anniversary and to “explore the state of age discrimination in America today and the challenges it poses for the future.” Participants in the meeting included Victoria Lipnic, newly-appointed Chairman of the EEOC, and various workers’ advocates who provided their thoughts on the perceived increasing prevalence of age discrimination in the workplace. Despite the enactment of the ADEA a half-century ago, the participants cited various statistics demonstrating the difficulty still facing older individuals in the workplace. This discrimination faced by older workers in an aging-American workforce coupled with various statements by Chairman Lipnic regarding the ADEA are signals to employers that ADEA enforcement may receive an increased focus during the Trump administration. In a previous post, we discussed the impact of Chairman Lipnic’s appointment and the direction of the EEOC under her new leadership and highlighted that ADEA enforcement would be one of the agency’s main focuses.
On May 23, 2017, the Department of Labor released its budget proposal for fiscal year 2018 (FY 2018). The budget contains several cost-cutting measures that reflect the new priorities of the Trump administration.
A notable aspect of the proposed budget is a request to merge the EEOC and OFCCP. The proposal aims for “full integration” of the two agencies by the end of FY 2018. To begin that transition, the proposal suggests sizable drops in the OFCCP’s current funding and staffing. The OFCCP’s budget is proposed to drop from $105,275,000 to $88,000,000 (a reduction of $17.3 million). The headcount is proposed to drop nearly 25%, from 571 full-time equivalent (FTE) employees to 440.
The United States Supreme Court recently resolved a Circuit Court split on the appropriate standard of review of a District Court’s decision whether to enforce a subpoena issued by the Equal Employment Opportunity Commission (“EEOC”). In McLane Co., Inc. v. Equal Employment Opportunity Commission, No. 15-1248, 581 U.S. __ (April 3, 2017), the Court held that such a decision should be reviewed only to determine whether the District Court abused its discretion – a deferential standard of review. This conclusion was fairly uncontroversial. Indeed, the abuse of discretion standard has long been used for review of decisions whether to enforce administrative subpoenas (such as those issued by the National Labor Relations Board). Historically, however, the Ninth Circuit alone has used a de novo standard of review in these circumstances, while the seven other U.S. Courts of Appeal to have addressed this issue all applied the more deferential standard. The Ninth Circuit panel itself questioned why de novo review applied, in light of the substantial authority to the contrary, and the Supreme Court took the case to resolve this circuit split.
Hunton & Williams recently published an entry on its Retail Law Resource Blog regarding what employers can expect from Victoria Lipnic, the new acting chair of the Equal Employment Opportunity Commission (“EEOC”) and an EEOC Commissioner since 2010. Since that publication, Lipnic has made public comments as to what she envisions from the EEOC under her leadership. Several key topics from those comments are summarized below:
On January 31, 2017, President Trump nominated Neil Gorsuch to fill the nearly year-long vacancy on the Supreme Court left by Justice Scalia. Judge Gorsuch, currently on the Tenth Circuit Court of Appeal, is likely a welcome choice for employers. His employment decisions generally—though not always—have favorable outcomes for employers. However, he does not appear to be a trailblazer on employment issues, but rather applies established precedent that generally favors employers. His employment decisions do not tend to draw dissent, bolstering the view that his opinions are not significant departures from Tenth Circuit and Supreme Court precedent. (Of course, not all agree. Senator Elizabeth Warren describes him as having “twisted himself into a pretzel to make sure the rules favor giant companies over workers and individual Americans. He has sided with employers who deny wages, improperly fire workers, or retaliate against whistleblowers for misconduct. He has ruled against workers in all manner of discrimination cases.”)
On November 21, 2016, the EEOC announced the release of new enforcement guidance addressing national origin discrimination. Like many enforcement initiatives of late, the update is intended to address current cultural issues and legal developments. It updates an EEOC compliance manual section from 2002 (Volume II, Section 13: National Origin Discrimination). The EEOC also issued a small business fact sheet and a Q-and-A document.