The social justice movement and the Covid-19 pandemic have had indelible impacts on the workplace that the U.S. Equal Employment Opportunity Commission is prepared to examine, agency chair Charlotte Burrows told Bloomberg Law.
“I feel very deeply that the horrific killing of George Floyd and Breonna Taylor and so many other African-Americans has brought to the forefront not just the relationships between Black communities and the police, but also the broader questions of systemic discrimination, and economic inequality, and all of those things that are at the core of our mission,” she said in an interview with Bloomberg Law.
Burrows said she plans to take action on both the pandemic’s unequal economic fallout and the racial justice initiatives by prioritizing efforts against systemic discrimination, and by “making sure we use all of the tools at our disposal to address those problems.”
For example, Burrows mentioned an interest in reigniting a discussion on 2007 agency guidance on workplace challenges faced by those with caregiving responsibilities—particularly in the wake of the pandemic.
“You’re seeing women, and particularly women of color, disproportionately impacted,” she said. “Those issues, I think, are particularly top of mind.”
Support from the Oval Office on civil rights efforts is welcomed, Burrows said. Biden, on his first day in office, signed a number of executive orders prioritizing racial equity across the government.
“It’s fantastic to have that kind of focus and support at that level,” she said. “We see that as synergy.”
Continued pandemic assistance, more employer guidance, and the implementation of the U.S. Supreme Court’s landmark LGBT discrimination decision also are top priorities for Burrows.
“This is an enormously important time for civil rights,” she said.
The EEOC will sometime in the future host a hearing on how the agency can continue to address the Covid-19 pandemic’s workplace impacts, Burrows said. Hearings are “an excellent tool” for gathering information from the public, she said, adding she’ll use it as a “springboard” for how the agency can act through policy or other approaches.
She said the focus will be broad, considering pandemic-related workplace issues, like harassment and discrimination against Asian Americans and people of Asian descent, could be stand-alone hearings.
More technical assistance for employers and employees on emerging pandemic-related issues can also be expected, according to Burrows. Business groups, for example, requested the EEOC to weigh in on the legally-murky area of vaccine incentives, which a number of employers are offering to encourage workers to get vaccinated.
“Where they hit our statutes, that is certainly something we’ll continue to do,” she said, not specifically mentioning vaccine incentives.
Harassment Guidance to Come
Long-awaited sexual harassment guidance may also be revived, according to Burrows, who said she’d like to follow up on it.
“Our attention has been on this issue, laser-focused, for a very long time,” she said.
The guidelines, drafted before the #MeToo movement caught the attention of the general public with allegations of assault against Harvey Weinstein, were submitted to the White House’s Office of Management and Budget in November 2017. The guidance has been in limbo since.
“That attention was helpful, but it’s not a substitute for the hard work of implementing those commitments,” Burrows said of the #MeToo movement. “I’m hoping we can revisit and move forward on guidance in that area.”
The EEOC enforces Title VII of the 1964 Civil Rights Act, which was found to prohibit LGBT workplace discrimination in a June 2020 Supreme Court ruling. Burrows said the agency will look at how it can implement the landmark Bostock v. Clayton County decision moving forward.
There are also questions about how the relatively new decision fits in with protections of religious liberty. The EEOC updated its guidance on religious discrimination in January, acknowledging the friction between anti-bias protections and religious liberty, but didn’t acknowledge whether one takes precedence over the other.
“There are a number of issues that remain developing in the law,” Burrows said. “We typically have let those issues come up as defenses in our litigation.”