President Trump’s appointment to the U.S. Equal Employment Opportunity Commission could signal a more cooperative attitude at the agency.
Now that the EEOC is likely to have a 3-2 Republican majority under nominee Janet Dhillon, its policies are expected to slant in a more pro-employer direction.
Control at the field office level, where much of the litigation against employers has originated, particularly litigation alleging systemic discrimination, is also likely to be more restrained. But that doesn’t mean employers should let their guards down either. You’ll still want to make sure you have a good employment practices liability insurance policy.
Under the Obama administration, the EEOC often attempted “to engage in litigation tactics to force certain outcomes or to force policies,” said J. Randall Coffey, a partner with Fisher Phillips L.L.P. in Kansas City, Missouri, to Business Insurance.
Under the new administration, the EEOC is not expected, for example, to try to push the boundaries of Title VII. In one such case involving a gay skydiver who said he was fired because of his sexual orientation, conflicting amicus briefs were filed with the appellate court. The EEOC contended that Title VII can be interpreted to apply to sexual discrimination, while the U.S. Department of Justice countered that Title VII does not address sexual orientation.
“The EEOC has been very aggressive in searching out cases on the cutting edge” of federal statutes, including those involving transgender issues, said Gerald L. Maatman Jr., a partner with Seyfarth Shaw L.L.P. in Chicago to Business Insurance. “I think when the Republican commissioners take their seats and have a majority, that sort of view of the EEOC will be pulled back,” he said.
One area where the agency is not expected to pull back, however, is with regard to sexual harassment. The recent revelations of sexual harassment and other sexual misbehavior by multiple media and political figures make this issue “too much of a hot potato for them to cut back on that,” according to Richard B. Cohen, a partner with FisherBroyles L.L.P. in New York.
People fundamentally agree that sexual harassment is noxious and should not be tolerated. Speakers attending the recent American Bar Association Labor and Employment Law Conference in Washington pointed out that there is still much harassment in the workplace that goes unreported. “Superstars” are often given a pass because of their power and influence. But tolerance for this behavior is fast disappearing. Given the current climate, suits alleging sexual harassment are likely on the rise.
A More Conciliatory, Cooperative EEOC?
Still, many employment law attorneys feel the tone of the EEOC will be more conciliatory and cooperative, seeking to help employers achieve compliance in a less adversarial and litigious environment. “We will see more outreach to employers for both training and education purposes, as well as trying to resolve the more complex charges before litigation,” said Paul C. Evans, a partner with Morgan Lewis & Bockius L.L.P. in Philadelphia.
EEOC Chairperson Nominee Janet Dhillon herself has said that she thinks the commission should spend more time on conciliation to avoid litigation.
Beware of Activist States
While the EEOC’s approach to litigation is expected to be less adventurous under the new administration, many experts feel that this may cause some states to become more active.
“HR professionals should never lose sight of the importance of annual compliance training and keep close tabs on statewide compliance regulations since there is enormous activity occurring at the state level,” Barry Hartstein, co-chair of the EEO and diversity practice at Littler Mendelson law in Chicago recently told Human Resource Executive Online.
For the most part, clients who carry employment practices liability insurance have coverage that is designed to respond to these kinds of EEOC claims. But, experts warn, businesses that operate in states with more permissive legal environments should operate with greater scrutiny. Insurance companies will be following events closely, too.