Two federal civil rights agencies will look to maintain the momentum gained around sexual harassment and workplace discrimination awareness through focused litigation and new approaches to conciliation in 2019.
For the Equal Employment Opportunity Commission, that work will have to wait until Congress and the president resolve a partial government shutdown.
But the commission and the Labor Department’s Office of Federal Contract Compliance Programs—which isn’t affected by the work stoppage— anticipate more enforcement activity in the coming year, agency heads told Bloomberg Law before the shutdown. For employers, this could mean shelling out more money to defend against or settle agency bias allegations.
Post-Weinstein Year 2
The EEOC scored $505 million in monetary relief from employers for alleged victims of discrimination in fiscal year 2018, showing that the agency didn’t slow down with enforcement. The agency also filed 50 percent more sexual harassment lawsuits than the previous year.
The agency was “not going to miss this moment,” Acting Chair
“This is a topic I’ve been interested in far before Harvey Weinstein showed up, and recognized this as a problem,” she said. “On the two-year anniversary of Harvey Weinstein, what will we see?”
Age, Disability Bias
Apart from sexual harassment litigation, age and disability-related discrimination are also on the acting chair’s radar.
The number of “big cases” the agency litigated related to disability discrimination were “missed a little bit” in the shadow of sexual harassment cases, but they will be a priority in 2019, she said. The agency settled several class disability cases in the past year, including a $1 million agreement with Memphis-based Mueller Industries Inc., over alleged disability-related leave discrimination.
Rulemaking might not be as productive at the commission, Lipnic said. The agency looks likely to lose its quorum in the new year. Confirmation of Commissioner Chai Feldblum (D) remained in doubt near the end of 2018 because her stances on LGBT workplace discrimination protections conflict with concerns from some conservative lawmakers about religious defenses for employers.
The hold on Feldblum also delays votes on Republican nominee Janet Dhillon for a seat on the commission, as well as Sharon Fast Gustafson for general counsel.
Another Republican nominee, Daniel Gade, withdrew his name from consideration for the role after waiting more than 16 months for confirmation. If a quorum is lost on Jan. 3, the nomination and confirmation process completely restarts with the incoming Congress.
A leadership bottleneck doesn’t bode well for an update to sexual harassment guidance, which has been pending clearance from the White House’s Office of Management and Budget since November 2017. Lipnic said she is “optimistic,” but the agency continues “to work on it.”
A new proposal relating to worker incentives for participating in employer wellness plans is still on the agenda for 2019.
“I will expect and hope to have that in place by early next year,” Lipnic said. “We’re certainly trying to figure out how to thread the needle in the best way possible.”
A legal challenge to the Trump administration’s decision to pause the agency’s collection of employer pay data is also pending and could see a decision in 2019. The agency is in “a much better position” to collect mass pay data after hiring a chief data officer, but the privacy concerns expressed by the regulated community are still “legitimate,” Lipnic said.
“I personally think it’s important for there to be options considered for incentives for employers to review their comp,” she said.
Over at the Labor Department, the OFCCP’s Acting Director Craig Leen reiterated his stance that FY 2019 could be a record year for hiring and pay discrimination settlements collected by the agency, which audits federal contractors.
The office has a “robust pipeline of cases,” he told Bloomberg Law. Two months into the current fiscal year, the agency has settled six allegations of discrimination, collecting more than $4.2 million.
He declined to comment on specific pending settlements that could be released in 2019, such as a looming Microsoft pay bias settlement. The agency also expects to increase the number of annual audits it conducts.
The contractor enforcement agency will continue its employer-friendly momentum into the next year, Leen said. It already has issued guidance in areas such as pay analysis, religious freedom defenses, and early resolution audit and settlement processes.
“New contractor recognition programs are currently in the public notice and comment period,” he said in a written statement. Winners of the “Excellence in Disability Inclusion” award and the “Leadership in Equal Access and Diversity” will receive two or three years free from audits.
One rule slated for a 2019 release would codify the religious defenses government contractors can use against allegations of discrimination. The agency released a directive in 2018 that advised officials to be mindful of already existing religious protections, but the new rule would turn that guidance into a regulation. Publication of the proposed rule could be “in the coming months,” Leen said.
Military health-care facilities currently exempt from audits through June 2019 may see that pass made permanent under a proposed rule slated for release at that time.