July 2, 2021
Reclaiming EEOC's Mission
Former Deputy Director, Office of Federal Contract Compliance Programs, U.S. Department of Labor, and former Senior Counsel to the Chair, U.S. Equal Employment Opportunity Commission
When Congress created the Equal Employment Opportunity Commission (EEOC), it declared that the purpose of the agency was to “prevent any person from engaging in any unlawful employment practice” prohibited by Title VII of the Civil Rights Act of 1964. The EEOC similarly states on its website that its mission is “to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.”
During the waning weeks and months of the Trump administration, the EEOC adopted a number of policies that undermined the agency’s mission and impeded its ability to enforce Title VII, the Equal Pay Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. Upon taking office in January 2021, President Biden replaced the Trump-appointed Chair and Vice Chair of the Commission with his own appointees, thus transferring administrative control of the agency to them. The EEOC’s new leadership, the Biden administration, and Congress have taken steps to reverse some of the Trump-era damage and return the agency to its original mission, including reinstating EEOC’s statutorily mandated obligation to share EEO-1 data with state and local fair employment practice agencies; revoking an executive order that effectively prohibited federal agencies, contractors, and grantees from conducting meaningful diversity, equity, and inclusion training; and repealing a regulation that severely limited EEOC’s ability to conciliate cases.
Much, however, remains to be done. Even though the five-member Commission now has new leadership, its majority remains in the hands of three Trump appointees, and it will stay that way until at least July 2022 unless one of those Commissioners decides to leave before the expiration of his or her term. For now, therefore, the Commission likely will be unable to make major changes in policy, such as adopting, repealing, or revising existing guidance documents or regulations. When a new majority is finally in place, the Commission can take a number of steps to rebuild and strengthen the agency’s ability to accomplish its mission, including:
- Reinstituting the Collection of Pay Data. In 2016, after years of consideration and collaboration with the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) as well as a study by the National Academy of Sciences, the EEOC adopted, and the Office of Management and Budget (OMB) approved, a requirement that employers report summary earnings data for their employees by sex, race, ethnicity, and job category (EEO-1 Component 2 Report). In August 2017, however, the Trump OMB stayed the Component 2 pay data collection, and the Trump EEOC then discontinued the collection. Subsequent court decisions held that the EEOC and OMB had violated the Administrative Procedure Act (APA) when they suspended the data collection. The court vacated OMB’s stay, reinstated OMB’s previous approval, and ordered the EEOC to collect the Component 2 data for 2017 and 2018. In 2020, however, OMB approved EEOC’s request to abandon the collection of Component 2 pay data. As soon as it is in a position to do so, the Commission should seek OMB approval to resume the collection of pay data that will enable it to analyze and investigate patterns of compensation discrimination.
- Revising the EEOC’s New Compliance Manual Section on Religious Discrimination. After the November 2020 election but before President Biden took office, the EEOC majority under its prior leadership swiftly proposed and then approved a sweeping revision of Section 12 of the EEOC Compliance Manual, which covers religious discrimination. Unlike the previous Section 12, which had been in effect since 2008, the new Section 12 contains a number of provisions that are designed not to protect workers from discrimination based on their religious beliefs and practices, but rather to enhance the ability of employers to discriminate against workers based on the employers’ professed religious beliefs. (The Trump OFCCP, also after the election, issued a similar rule that allows federal contractors, including for-profit corporations, to discriminate against workers based on the contractors’ professed religious beliefs.) For example, new Section 12 of the EEOC’s Compliance Manual indicates that for-profit corporations may qualify for Title VII’s religious organization exemption; that religious organizations may discriminate in favor of employees who share their employer’s religious observances, practices, or beliefs; that religious employers may be permitted to engage in sexual and racial harassment as well as other discriminatory practices; that the “ministerial exception” previously created by the Supreme Court may deprive many religious organization employees of any protections under the antidiscrimination laws; and that the First Amendment and the Religious Freedom Restoration Act may provide private employers with defenses against claims of religious discrimination and failure to accommodate employees’ religious beliefs and practices. As soon as it is in a position to do so, the Commission should revise Section 12 to bring it back into line with the purpose of Title VII, which is to protect workers from discrimination.
- Extending Employer Recordkeeping Requirements from One to Three Years. Federal antidiscrimination statutes require employers to make records relevant to allegations of unlawful employment practices, and to “preserve such records for such periods … as the [EEOC] shall prescribe by regulation or order ….” EEOC regulations implementing Title VII, the ADA, and GINA, in effect since 1991, require the preservation of “any personnel or employment record made or kept by an employer … for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later,” or “for a period of one year from the date of termination.” In many cases, this one-year period is not long enough to provide EEOC investigators (and plaintiffs in subsequent litigation) with sufficient information to get a full picture of the employer’s treatment of the charging party and any relevant class over time or to make meaningful comparisons with the treatment of other similarly situated employees. (EEOC’s ADEA regulations require employers to make and keep payroll and certain other records for a period of three years, but other personnel and employment records are required to be kept only “for a period of 1 year from the date of the personnel action to which any records relate.”) As soon as it is in a position to do so, the Commission should amend its regulations to require employers to maintain certain specified records (as set forth in the ADEA regulations) as well as all other records ordinarily made and kept by the employer (as set forth in the Title VII-ADA-GINA regulations) for a uniform three-year period so that EEOC investigators will have access to more complete information.
- Returning to the EEOC’s Previous Delegation of Litigation Authority to the General Counsel and Regional Attorneys. For many years prior to the previous administration, the Commission had broadly delegated to the General Counsel the authority to commence or intervene in litigation in most cases, reserving that decision to the Commission itself only in limited circumstances such as cases involving a major expenditure of agency resources, a developing area of the law, or a likelihood of public controversy. This delegation, which included granting the General Counsel the ability to redelegate litigation authority to Regional Attorneys, allowed EEOC’s litigation program to proceed without excessive bureaucratic delays and undue political influence. In the last several months of the Trump administration, however, the Commission dramatically curtailed the General Counsel’s litigation authority and required Commission approval in far more cases. And in January 2021 – a few days before President Biden’s inauguration and his appointment of new EEOC leadership –the Commission imposed additional restrictions that have the effect of (1) subjecting all cases to a full Commission vote if the majority wishes to hold such a vote and (2) eliminating the General Counsel’s ability to redelegate to Regional Attorneys the authority to commence any litigation. As soon as it is in a position to do so, the Commission should review its litigation delegation policies and restore an appropriate balance that will allow the General Counsel and Regional Attorneys to perform their appropriate law enforcement functions without excessive delays or undue political intervention by the Commission.
- Implementing the EEOC’s Strategic Enforcement Plan. The EEOC’s Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021, adopted by a bipartisan vote of the Commission, remains on the books. The SEP lists the following national substantive area priorities: (1) Eliminating barriers in recruitment and hiring; (2) Protecting vulnerable workers, including immigrant and migrant workers and underserved communities; (3) Addressing selected emerging and developing issues; (4) Ensuring equal pay protections for all workers; (5) Preserving access to the legal system; and (6) Preventing systemic harassment. The Commission should be developing technical assistance, guidance, and regulations – and pursuing litigation – designed to advance, rather than frustrate, these priorities. For example, the Commission should be protecting immigrant workers from employment discrimination (Priority 2); should be solidifying Title VII’s LGBTQ protections recognized in Bostock v. Clayton County, (Priority 3(c)); and should be protecting employees from retaliation, including human resources employees who report discriminatory practices (Priority 5(3)).
In the coming months and years, the EEOC will have the chance to repair some of the damage done during the Trump administration. The agency should take advantage of that chance and begin to reclaim its mission of preventing discrimination and advancing equal opportunity in America’s workplace.
Patrick Patterson served as the Deputy Director, Office of Federal Contract Compliance Programs, U.S. Department of Labor from 2014-2017. He also was the former Senior Counsel to the Chair, U.S. Equal Employment Opportunity Commission from 2010-2014.