Representatives of the Equal Employment Opportunity Commission (EEOC), as well as the Department of Labor and the Department of Justice (DOJ), participated in an American Bar Association Equal Opportunity Law conference in Austin, Texas, this month. During that conference, EEOC representatives, including three of the commissioners and general counsel David Lopez, addressed a number of key topics and initiatives on EEOC’s plate relating to current EEOC Strategic Enforcement Plan priorities:
- Eliminating barriers in recruiting and hiring
- Protecting immigrant, migrant, and other vulnerable workers
- Addressing emerging and developing issues
- Enforcing equal pay laws
- Preserving access to the legal system
- Preventing harassment through systemic enforcement and targeted outreach
We summarize below the discussions on several of these themes suggestive of how the various government agencies involved in labor and employment issues view these issues – at least for the remainder of the current administration.
Gender-Based Pay Disparity Concerns: Pay equity and the recent EEOC proposal to require employers to submit detailed pay data on EEO-1 forms was a significant topic of conversation. The discussion included if and how subjective factors such as prior relevant experience, leadership capability, and demonstrated past performance that contribute to pay, promotion, and advancement decisions can be evaluated and correlated to pure pay data. The topic of gender pay equity was further highlighted by the April 1, 2016, filing of an EEOC equal pay charge by five leaders of the U.S. Women’s National Soccer team against the U.S. Soccer Federation. That charge alleges that the players on the U.S. men’s soccer team are paid disproportionately more even though the women’s team has had far better success on the field and has dramatically increased popularity of the sport and raised substantial revenue for the Federation.
Online Submissions, Disclosure of Materials to Charging Parties, and Arbitration: The EEOC representatives discussed the commission’s new online charge status system, which enables the charging and responding parties to determine online the status of the charge process, and to upload and download relevant documents through a secure online portal process.
The agency has also rolled out a new policy that position statements will be provided to the charging party so that the EEOC can solicit feedback in response to the employers’ positions. There are procedures in place to address confidentiality concerns with this new practice.
Arbitration clauses with class action waivers are also a strategic area of focus, and there are numerous cases on appeal where the EEOC is challenging class action waivers.
E-Verify Practices: The agencies highlighted the increased focus on the e-verify system and whether or not persons who are not U.S. citizens are asked for more or different information to establish their identity or worker eligibility than U.S. citizens. For example, the agencies are scrutinizing whether U.S. citizens are told they can present a certain type of documentation, but non-U.S. citizens are asked to provide multiple forms of identification. Of particular interest is software used by employers to streamline the application process, but which might identify and reject certain applications based on criteria such as national origin. A DOJ representative noted that there are several cases before a DOJ administrative court challenging employers about these practices.
Immigrant and LGBT Workers: A panel that included EEOC regional attorneys also discussed several matters being pursued on behalf of immigrant workers in the hospitality and construction industries, particularly out West.
Finally, and not simply because of the recent legislative activity in North Carolina and Georgia, the EEOC is focused very intently on LGBT issues and gender orientation protection under discrimination laws.