What Employers Can Expect From the EEOC Under the Obama Administration
By Eric M. Trelz and Elizabeth T. Gross
As history has shown, each incoming presidential administration brings in new policies, perspectives and objectives. Barbara A. Seely, the regional attorney for the Equal Employment Opportunity Commission’s (EEOC) St. Louis District, discussed these expected changes as the featured speaker at Polsinelli Shughart PC’s annual Employment Law Seminar held this past spring at Washington University’s Knight Center. Employers should be aware of what lies ahead under the new administration and do all they can to prepare.
Structure of the EEOC
The EEOC is an independent executive agency that enforces, among other things, Title VII of the Civil Rights Act (Title VII), the Equal Pay Act (EPA), the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). At the top of the hierarchy, the EEOC has its chairman and general counsel. Both report directly to the president, and Congress must approve their appointments. The EEOC has five commissioners, three from the party in power and two from the other party.
Current State of the EEOC
On July 16, 2009, President Obama announced his intent to nominate Jacqueline Berrien as the permanent chair of the EEOC. Berrien has served as associate director counsel of the NAACP Legal Defense and Education Fund since September 2004. Deputy General Counsel James Lee will oversee the Office of the General Counsel until President Obama appoints a general counsel. Since the resignation of Commissioner Naomi Earp on June 7, 2009, the EEOC is missing one of its two Republican commissioners.
Until the makeup of the commissioners is settled, it will be difficult for the commissioners to make important policy decisions. This is unfortunate for employers who are struggling to understand the implications of recent legislation, such as the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which substantially expanded the scope of the ADA.
What Employers
Can Expect from
the EEOC
Since 2001, the number of EEOC attorneys and investigators has decreased 25 percent, making it difficult to keep pace with an increasing number of charges. While presidential candidate Obama promised increased staffing to reduce charge backlogs and remedy systemic discrimination, the economic situation instead resulted in cost-cutting measures. Now the EEOC will focus more on nationwide investigations and class actions that will allow the EEOC to obtain financial relief for a larger number of people. Such investigations and lawsuits may be initiated in the following ways:
- The EEOC will wait for a charge of discrimination and expand the scope of the charge to a class of individuals.
- In Title VII and ADA cases, the EEOC will institute a commissioner’s charge and conduct an investigation without a charge from an individual.
- The EEOC will institute directed investigations, without a charge from an individual, under the EPA and the ADEA.
What Employers Should Do
While the EEOC’s path is unclear, there are several steps employers can take to prepare. Employers should review their employment policies and procedures to determine whether they have a disparate impact on any protected classes or may result in systemic discrimination. Employers should also update their harassment policies and ensure effective recordkeeping practices. These measures cannot guarantee the EEOC will not undertake an investigation of your business, but they will go a long way in responding to charges and limiting your damages.
Polsinelli Shughart PC Shareholder
Eric M. Trelz is an employment litigator with more than 20 years of experience. He may be reached at etrelz@polsinelli.com.
Elizabeth T. Gross is an associate who focuses her practice on workplace issues and may be reached at egross@polsinelli.com.
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