What Do The Kardashians And The EEOC Have In Common?
What can we expect from the EEOC during the Trump Administration?
The Kardashians (photo by Kevin Mazur/Getty Images for Yeezy Season 3).
Answer: If you blink, you might miss something important.
Actually, that’s anything but true. You can tune in weeks later without having missed anything.
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Until now.
Keeping Up With The EEOC: “It’s a New Day”
I am an avid fan of archaeology, watching shows like “Keeping Up With The Leakeys.” (Note: OMG the Leakeys will never replace the Kardashians! And Olduvai Gorge is not a funky new neighborhood in Palo Alto. Google it!) It’s just amazing how from one excavated finger bone experts can determine the size, shape, and nature of its ancient owner.
Anyway, back to the Kardashians – sorry, I meant the new Acting EEOC Chairwoman Victoria Lipnic. (Did I say Kardashians? Note to self: what is “clickbait?”)
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“It’s a new day,” said the new Acting Chairwoman, as reported by Corporate Counsel, and she “suggested” that the EEOC “will focus on cases involving age discrimination and equal pay while exploring ways to foster job growth in companies.”
From these few words – as with the excavated finger – we must now divine what the EEOC’s “new day” will be like.
“It Was A New Day Yesterday, But It’s An Old Day, Now” (Jethro Tull, former EEOC Commissioner)
Since the new Chairwoman has been an EEOC Commissioner since 2010, one may fairly ask about the new “focus”: have she and the EEOC not been focusing “on cases involving age discrimination and equal pay?”
And why, exactly, do we need a “new day” – what was wrong with the “old day”?
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The only thing “new,” as I see it, is … the new White House occupant, who claims that his overarching purpose for becoming the new occupant (besides building a wall) is job creation – you know, the work to which he has dedicated his long, philanthropic career.
Jobs, Jobs, and More Jobs? Title VII: We Hardly Knew Ye!
The Chairwoman announced that “President Trump has made it very clear that he is interested in jobs, jobs, jobs,” and the EEOC, therefore, “will incorporate that attitude into its policies.”
However, the mandate and role of the EEOC is not “to create jobs,” as even the Chairwoman stressed: “We are an enforcement agency, and the EEOC is committed to its core values and mission, to enforce civil rights laws in the workplace.” The EEOC has never been tasked with creating jobs, nor can it create jobs.
The only way that the EEOC can possibly address “creating jobs” is to reduce or abandon the enforcement of workplace rights – which makes the anti-regulation White House salivate. “Trump and congressional Republicans are working to strip rules away at an unprecedented rate.” Title VII may not be a general workplace “civility code,” noted Justice Scalia, but we may now see Title VII no longer being much of a workplace code at all.
To be fair, Chairwoman Lipnic has been a good and thoughtful Commissioner, who worked well with the other Commissioners. And her appointment is — surprisingly, given the appointer-in-chief — a good and competent one. (Note to Chairwoman: you are only “acting” – better not be too good or fair.)
So maybe I will be proven wrong.
Less General Counsel Involvement
The Chairwoman also “said she wants the commission to have an opportunity to see and vote on more litigation issues. … too many decisions on litigation have been delegated to the general counsel.”
Was this a problem?
Well, only if you didn’t like that departed GC David Lopez aggressively enforced the anti-discrimination laws, including on behalf of LGBT employees. Since the majority of the Commission will become Republican soon, taking “litigation issues” out of the hands of the GC — well, let’s just say LGBT folks (and many others) better be ready to fend for themselves!
Moreover, she asked if the EEOC has been “overly committed to nationwide, systemic class actions,” and should be “more strategic” – prosecuting cases regionally rather than nationwide. “Overly committed?” Likely translation: We will no longer focus on nationwide cases against large “job creating” corporations. And when people talk “regional” and “states’ rights” – well, you don’t need to be a dog to hear that whistle.
She also “wants a re-evaluation of the costs and benefits of the modified EEO-1 report, a detailed compliance survey that employers must fill out.” Truth be told, this form really is a pain in the ass, but it has long been the bête noire of employers mainly because it can expose otherwise hidden workplace discrimination. So “re-evaluation” may mean “gutting” or “abolishing.”
One Hand Giveth, The Other Hand Taketh Away
She is also “very interested in equal pay issues. It’s something I would consider a priority.” That’s good. But “equal pay” may simply devolve into “equal minimum wage” under the new Labor czar.
She also said that “we will be doing a number of things related to [the Age Discrimination in Employment Act]. It should get a high profile this year.”
Good: But the EEOC is already on the job here – bigly.
Something’s up: Age is already one of the six priorities in the EEOC’s Strategic Enforcement Plan. There are five other priorities to which she didn’t give the “high profile” designation, like harassment, access to the legal system, emerging/developing issues (e.g., LGBT), immigrant and vulnerable workers, and discriminatory hiring practices against people with disabilities, racial, ethnic and religious groups, and women.
Uh oh … it doesn’t take a genius to draw a straight line from the White House to the “new day” EEOC in order to make a prediction on what will not be a priority.
Takeaway
Let’s look forward(?) to ringing in the past!
Richard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.
