A Flurry of EEOC Activity Just Before and Up to Inauguration Day, and the Appointment of an Acting Chair

In the month leading up to Donald Trump’s Inauguration, the EEOC issued several notices that may be of interest to employers.

National Origin Discrimination. In late November the EEOC issued a new enforcement guidance on national origin discrimination. The guidance provides insight into how EEOC investigators are going to analyze claims of national origin discrimination. In addition to the guidance, the EEOC issued a fact sheet that specifically reminds employers that Title VII protects job applicants and employees regardless of immigration status and customer preferences. This protection is established law and not part of an executive order.

Mental Disabilities. On December 13, 2016, the EEOC provided notice of a new resource document directed at employees and applicants explaining that those with mental disabilities are protected from discrimination and harassment based on their conditions. In this resource document, the EEOC notes that its data shows that charges of discrimination based on mental health conditions are on the rise. Handling issues relating to mental disabilities is often difficult (and sometimes scary) for employers. An understanding of the EEOC’s position on employers’ obligations is important to avoiding legal liability. A helpful resource for employers dealing with disability accommodation issues is the Job Accommodation Network, a service of the Office of Disability Employment Policy, U.S. Department of Labor. This website provides suggested accommodations for employees with disabilities, including those with mental disabilities.

Highlighting Accomplishments. On December 21, 2016, the EEOC issued a notice discussing its 2016 highlights. This document details the number of charges resolved by the EEOC and points out that the EEOC secured more than $482 million dollars for victims of discrimination.

Affirmative Action. On the first business day of January 2017, the EEOC provided notice that it issued final rules requiring federal agencies to engage in affirmative action for individuals with disabilities. These new rules are set to go into effect on March 6, 2017. The EEOC followed up with a question and answer document providing general information about the rules. These rules are not applicable to private-sector employers.

Harassment. On January 10, 2017, the EEOC issued a proposed Enforcement Guidance on Unlawful Harassment and is inviting comment on the guidance. The deadline to provide feedback on the draft guidance is February 9, 2017. If you are interested in providing feedback, it can be posted (publically) here.

Case Law Digest. On January 12, 2017, the EEOC issued its quarterly publication that reviews federal court cases of interest, as well as recent Commission decisions. Although interesting and informative, unless you are a L & E attorney looking for something specific, preparing a presentation on the EEOC’s legal activity, or want to pretend that you are in law school, reading this document should not be a high priority.

Litigation Statistics. The day before the inauguration, the EEOC issued its enforcement and litigation statistics for 2016. The information provided shows that in Florida the number of charges filed in 2016 was greater than those filed in 2015. The statistics also give information on the breakdown by state of charges filed, as well as the type of charges filed (age, race, sex, retaliation, etc.).

Progress Report. On Inauguration Day, the EEOC sent out a notice highlighting the January 19, 2017 release of its Progress Report. This document is the EEOC’s review of its own work, detailing how the EEOC has been complying with its legislative mandate to enforce Title VII (and other laws). It will be interesting to see what the next Progress Report looks like, as it is likely that the agency may adjust its focus over the next year or so.

Appointment of an Acting Chair. On January 25, 2017, President Trump appointed Victoria Lipnic to serve as the EEOC’s acting chair. Lipnic joined the Commission in 2010 and was confirmed for a second term in late 2015. Before joining the Commission, she served as Assistant Secretary of Labor for Employment Standards.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558