EEOC continued 'aggressive litigation' under Trump — but changes may be on the horizon

Dive Brief:

The U.S. Equal Employment Opportunity Commission (EEOC) — the federal agency tasked with enforcing nondiscrimination laws — "continued to pursue aggressive litigation and close out settlements at high rates" in 2019, despite some setbacks, according to a Dec. 30 report from law firm Seyfarth Shaw LLP. And recent changes at the commission mean employers may soon see new priorities emerge.
There were five notable developments in EEOC-initiated litigation last year, according to Seyfarth: LGBT bias reaching the U.S. Supreme Court; limits set on the EEOC's ability to regulate employers' use of arrest and conviction records; a rejection of the pre-emptive theory of disability bias; decisions relating to joint employment and temporary workers; and EEOC pay data collection.
Seyfarth noted that the EEOC "was not firing on all cylinders for a significant part of the year," due to a loss of quorum and a political shutdown. However, new appointees are now settled in, which means that businesses will finally see "the changes in the EEOC’s strategic direction employers can expect under the Trump administration."

Dive Insight:

As the Seyfarth report noted, EEOC faced a number of setbacks last year, including in its plans to collect pay data in employer EEO-1 reporting requirements. Most recently, it announced that it will not collect the data after the end of the current cycle, even though one the agency's six national priorities is to address and prevent pay gaps.

EEOC also continued, well into the Trump administration, the aggressive litigation it started under the Obama administration, according to another report from Seyfarth. The agency has continued to maintain, contrary to the position taken by the Trump administration, that discrimination on the basis of sexual orientation or gender identity is illegal under Title VII of the Civil Rights Act of 1964.

Looking ahead to later in 2020, EEOC said it may revisit the issue of pay data reporting and adopt new requirements for employers via rulemaking. The EEOC, following U.S. Department of Labor and National Labor Relations Board efforts, also said it may promulgate a new regulation addressing joint employment liability.