A few weeks after his inauguration in January, Donald Trump appointed the only Republican Commissioner at the Equal Employment Opportunity Commission, Victoria Lipnic, as the acting chair of the Commission. The question on the minds of many employers and human resource professionals, however, was not who was going to be appointed, but whether the new administration will also mean a new enforcement agenda. According to Lipnic, the short answer is, “not really.”
At a recent panel discussion, Lipnic stated that while the EEOC will uphold the core mission of the EEOC by pursuing enforcement of the country’s anti-discrimination laws, the focus will shift more towards collaboration with employers to further bolster the Trump Administration’s commitment to job creation and growth.
Of course, how this actually plays out rests a great deal on when the Commission takes action. Currently, Lipnic is the only Republican Commissioner. However, with one current vacancy to be filled and another that will open later this year when Jenny Wang’s term expires, the swing from Democrat to Republican on the five-member board will be complete later this year. Once Lipnic, or whoever is appointed as the permanent chair, has the majority in place, the fireworks may well begin.
The type and ferocity of those fireworks remains to be seen. The first salvo was launched with Lipnic’s comments on the Strategic Enforcement Plan the Commission adopted in October 2016 for fiscal years 2017-2021. She indicated that the priorities outlined in the SEP will be retained … for the most part. Of those enforcement priorities, she did specifically single out systemic initiatives for review. While systemic initiatives will continue, Lipnic will call for the Commission to seriously evaluate the resources that are being devoted to them. In contrast, Lipnic opined that it was very important for the Commission to continue to pursue individual cases of discrimination.
For those searching the tea leaves for the true future of enforcement, Lipnic’s comments may not offer much guidance one way or the other. This is understandable since the new administration is barely three weeks old and she is the acting chair, meaning she could be replaced in a few months. Given her history of working with Democratic Commissioners, Lipnic may not be Trump’s first choice to head the Commission for the long run. He may instead seek a Republican more aligned with his pro-business stance.
Lipnic did, however, make her Republic credibility clear by pointing out her prior disagreements with Democratic Commissioners over new changes to the EEO-1 form. Specifically, she was against the requirement that employers with 100 or more employees also disclose wage data in addition to gender, race, and ethnicity. She identified this regulation as a classic example of what the Trump Administration was seeking to have reviewed and reconsidered, at a minimum.
Similarly, she was not in favor of allowing the EEOC general counsel – another position that is to be filled – to file suit in district court absent the vote of the Commissioners. She believes that the Commissioners should have some greater oversight over this litigation. Whether the EEO-1 and general counsel rules will fall by the wayside remains to be seen.
However, it does appear that Lipnic is attempting to not stir up the waters just yet, but is giving enough hints to mollify both employers and workers. While this is not the modus operandi of the Trump Administration, it is a reflection of her long-standing relationship with the EEOC and her current temporary status. Stay tuned for further updates!
For more information, contact Ahmed Younies at 714-884-4610 or [email protected].