Posted January 1st, 2019.
By Braden Campbell
Law360 (January 1, 2019, 12:03 PM EST) — The U.S. Equal Employment Opportunity Commission will continue to hold employers’ feet to the fire over claims of discrimination and sexual harassment in the new year, but may be slow to make new policies with three of the commission’s five seats now vacant, experts say. Here, Law360 looks at what to expect from the workplace bias watchdog in 2019.
The Senate’s failure to confirm nominees Daniel Gade and Janet Dhillon and reconfirm two-term commissioner Chai Feldblum by the end of the legislative session means there is no longer a quorum, with only Acting Chair Victoria Lipnic and Commissioner Charlotte Burrows seated.
But the agency will mostly hum along even with these vacancies at the top, said James Paretti, a Littler Mendelson PC attorney who was Lipnic’s chief of staff until this summer.
“Routine enforcement activities and things of that sort are already delegated down to district directors,” Paretti said. “The impact of loss of quorum on those sorts of day-to-day activities I think would be fairly minimal, at least in the short term.”
This means the agency will continue to field and investigate bias complaints and bring suits alleging mistreatment of workers. But the agency’s policymaking will grind to a halt, Paretti said.
While Lipnic will be able to sign off on certain minor documents that apply existing law or policy to new fact patterns, anything more than that will need more commissioners.
For example, Lipnic could approve new guidance describing settled principles for accommodating disabled workers with specific ailments, such as post-traumatic stress disorder. But guidance reinterpreting employer’s obligations under the Americans with Disabilities Act cannot move forward without a third person on the commission.
And if the commission didn’t delegate more powers when it still had a quorum, it now cannot approve big-money contracts or amicus briefs until it has at least one more member. Trump renominated Feldblum a year ago, and Gade and Dhillon have been waiting nearly 15 months for a floor vote. The trio will need to be advanced anew by committee in 2019, so it’s no guarantee the commission will get staffed up quickly.
“They’ve been sitting out there a while,” Paretti said.
Unsurprisingly, the federal government’s workplace harassment watchdog has been busy in the 14 months since the start of the #MeToo movement.
The EEOC filed 41 lawsuits accusing employers of sexual harassment in fiscal year 2018 — which started days before the Harvey Weinstein story first broke — which was 50 percent more than it had filed the year prior. The agency also fielded more than 7,600 sexual harassment charges, which marked another major uptick. That trend won’t change in 2019, experts say.
“Sexual harassment is being called out,” said Michael Palmer, an attorney with Sanford Heisler Sharp LLP who represents workers. “The EEOC is aware of this, and certainly Congress is aware of it and gave them some additional funding, and so they’re also going to take that into account when they’re thinking about which cases they want to really spend their resources on.”
But the EEOC’s #MeToo-related work hasn’t been limited to litigation, as the agency also rolled out two new anti-harassment training programs in the midst of the movement.
These programs were popular with employers in 2018 and should remain so in 2019, said Amy Bess, an employment attorney at management-side firm Vedder Price PC. She said the agency is “really looking for ways to encourage employers to create very compliant and respectful workplaces … under the adage that an ounce of prevention is worth a pound of cure.”
And the EEOC’s interest in sexual harassment won’t be to the exclusion of the agency’s duties to root out discrimination on the bases of race and disability, Bess said.
If Dhillon, who has been tapped to chair the commission, is finally confirmed in 2019, she may change its enforcement strategy. Paretti said Dhillon would have “more impact on the agency’s overall path than any individual commissioner” if confirmed. But it’s unclear what the exact impact would be. Aside from saying she prefers educating employers to suing them, the longtime corporate counsel has said little publicly of her policy views.
Wellness Programs, Other Items
Although the lack of a quorum won’t derail enforcement, it will further push back an answer to an important question for employers: How can they encourage workers to take part in wellness programs without being sued?
The EEOC in 2015 issued twin rules that employers can provide incentives worth up to 30 percent of the cost of self-only insurance coverage without running afoul of bias laws blocking them from forcing workers to disclose health information, which some wellness programs require.
But a federal judge said the EEOC didn’t adequately explain why it picked this level and ordered the rules vacated as of Jan. 1, leaving employers unclear on what they can offer without risking suit. The agency is aiming to put out a new proposal in June according to the most recent regulatory agenda, although it won’t be able to do so without a quorum.
Employers are also hoping 2019 sees the release of long-awaited guidance on workplace sexual harassment. The EEOC issued draft guidance in January 2017, laying out its legal interpretation of harassment and recommending best practices for rooting it out, but it has yet to be finalized. This has left employers unclear about what they should do to prevent sexual harassment, Bess said.
“They want to make sure [their sexual harassment policies] are EEOC-blessed or approved, in the sense that what they’re going to do and what resources they’re going to invest in those processes are going to be ones that are going to … withstand the scrutiny of the EEOC should they get a charge of discrimination,” Bess said.
–Editing by Philip Shea and Nicole Bleier.