On Aug. 3, 2017, U.S. Equal Employment Opportunity Commission (EEOC) acting Chair Victoria Lipnic spoke to a large audience at the annual National Industry Liaison Group (NILG) Conference held in San Antonio, Texas.
Of particular interest to employers nationally was Lipnic’s thoughts on what she referred to as “the elephant in the room” — the status of the new requirement that certain employers with 100 or more employees must submit detailed compensation and hours-worked data (i.e., “Component 2” data) beginning in March 2018, in addition to race and gender information currently required with standard EEO-1 reporting. (For additional information about these burdensome new obligations, see our July 15, 2016 summary).
Key highlights from Lipnic’s speech include the following:
- Lipnic noted that the EEO-1 pay reporting requirement is “the poster child for the kind of regulation that the president campaigned against,” and she reaffirmed her personal opposition to it.
- As to the common employer question of “why haven’t you just revoked Component 2?” she noted that the EEOC “is a voting body, and it takes votes to undo things and it takes votes to change things.” Until pending EEOC appointments are confirmed later this year, such votes simply are not there.
- Lipnic noted that, having said this, she sent a memorandum to the new head of the White House’s Office of Information and Regulatory Affairs (OIRA), Neomi Rao, stressing that “time is of the essence” if the EEO-1 pay reporting requirement is to be suspended pending further administration review. As a practical matter, employers and the EEOC need to make changes to their systems now to be compliant in March 2018.
- Thus, Lipnic said she advised OIRA that an answer on the status of the new EEO-1 requirement is needed by the end of August 2017.
- Referring to a July 2017 amicus brief filed in a pending Second Circuit sexual orientation discrimination case Lipnic noted that DOJ’s viewpoint conflicts with the EEOC’s position that the term “sex” under Title VII encompasses sexual orientation and not just gender.
- She said “the fact that there are competing legal interpretations by EEOC and the Department of Justice is perfectly legitimate,” given the conflicting case law in this area and related questions of legislative versus judicial authority.
- Lipnic went on to note that, at present, the EEOC “has more than 3,000 charges pending before us based on sexual orientation,” and some of the actions claimed in them “have been pretty horrendous and blatant.” Lipnic asserted, “I am not interested in seeing the EEOC walk away from these people,” signaling that the current split in agency enforcement viewpoints may continue until resolved in the courts.