Since being named acting chair of the EEOC, Victoria Lipnic has given the employment law and HR management community a glimpse into the direction and priorities of the EEOC. She recently appeared on a special episode on the WorkedUp podcast to further share her perspective on a wide range of issues concerning workplace discrimination as well as the EEOC’s enforcement and remedy efforts. A few of the highlights from that discussion:
EEOC’s Job Growth Initiative
Under Chair Lipnic’s leadership, employers are likely to see a new focus by the EEOC related to job growth and economic development. Chair Lipnic shared that, in particular in the remedy phase of EEOC-led litigation (meaning, when the EEOC enters into voluntary agreements with companies to settle discrimination lawsuits), the Commission would require that employers, in an effort to build diversity, utilize expanded and specifically-tailored advertising and recruitment initiatives. In this regard, Chair Lipnic shared her belief that many industries have a “pipeline” problem, which could be lessened by credible advertising and recruitment efforts in communities not well represented in that industry. Chair Lipnic also related that the EEOC District Offices are being encouraged to expand their community outreach efforts generally to encourage job growth.
Employers are likely to see a new focus by the EEOC related to job growth and economic development.
Possible Solutions for Pay Inequality
In September 2016, the EEOC issued revisions to EEO-1 requirements, which would require applicable employers to submit EEO-1 reports that include, for the first time, W-2 pay and hours-worked data, broken down by job categories, for their entire workforces (Chair Lipnic voted against the measure). The changes are set to take effect in the first quarter of 2018.
While declining to opine upon whether the new EEOC administration will seek to invalidate the new EEO-1 disclosure requirements, Chair Lipnic noted her belief that the new requirement might not be the ideal tool to correct the wage women and minorities may presently face. In fact, Chair Lipnic related that, in her view, these types of pay- and hours-related data are often unreliable in identifying wage gaps attributable to discriminatory hiring and promotion.
In addition, Chair Lipnic noted the EEOC should focus on identifying and addressing the underlying reasons for the gap, including attacking the underlying reasons behind the transience of many women in the workforce and the tendency of some women and minorities to self-select out of certain jobs and industries. Chair Lipnic noted her belief that many states and cities have employed effective and innovative approaches to combating pay inequity, including New York City’s upcoming prohibition against salary history inquiries.
When it comes to practical advice to practitioners and employers concerning pay inequity, Chair Lipnic encouraged employers to perform their own pay equity analyses, taking into consideration the unique dynamics of their workforce and use that data to encourage equality practices.
Combating Age Discrimination in the Workplace
With this year as the 50th anniversary of the Age Discrimination in Employment Act, Chair Lipnic shared the EEOC’s intention to focus on initiatives to tackle age discrimination. For example, on June 14, 2017, the EEOC held a hearing to assess the impact of age discrimination on today’s economy. Chair Lipnic related her belief that the ADEA is even more relevant today than when it was first enacted and encouraged employers to expand their diversity and inclusion efforts to include age.
Effective Anti-Harassment Practices
Chair Lipnic also discussed a topic to which she has dedicated much study during her career: workplace harassment. From 2015 to 2016, Lipnic co-chaired the EEOC's Select Task Force on the Study of Harassment in the Workplace, which culminated in the issuing of a final report at a Commission meeting in 2016. Chair Lipnic highlighted a number of employer best practices, including altering the types of anti-harassment training employers offer to include workplace civility training and by-stander intervention training, identifying “superstar harassers” (high performers who employers are often hesitant to discipline), and training of front-line managers.
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