Epstein Becker Green's Annual Briefing Featured in "Punching In: Here's What's New at the Labor Dept. and EEOC"

The Justice Department told the Supreme Court last week that it won’t defend the Equal Employment Opportunity Commission’s lawsuit arguing that transgender discrimination is a form of sex bias. One day later, Acting EEOC Chair Victoria Lipnic (R) was in the Big Apple as a keynote speaker at Epstein Becker’s annual briefing. Lipnic told me the agency will continue prosecuting transgender discrimination cases, at least for now. She also offered a handful of updates on other EEOC business.

• Pay Disclosure: You can go ahead and stick a fork in the Obama administration’s proposal to expand pay data reporting requirements for many employers, but there could be changes in the annual EEO-1 survey. Lipnic said she wants to get stakeholders from various corners of the employment law universe to talk about how the agency can better police pay discrimination. “I think that ideally there would be some kind of—not quite as extensive as what we did on the harassment task force—but some effort to try to get to some more consensus view of what’s the right policy choice here,” she said.
• Wellness Plans: The EEOC will publish a new regulation in early January on employee wellness plans. The move is meant to comply with a federal judge’s ruling permanently blocking an Obama-era regulation. The judge said provisions that let employers offer to pay part—up to 30 percent—of a participating employee’s health insurance premium would violate federal law by making plans no longer “voluntary.” The new rule will revoke the offending provisions of the Obama rule without clarifying the line between “voluntary” and “compulsory.” Lipnic says Congress is best positioned to answer that question. “How much bipartisan support is there continuing for incentivizing wellness plans?” she asked. “That’s certainly something I’m going to spend some time on.”
• #MeToo: The agency is still focusing heavily on sex harassment in the wake of the #MeToo movement.
• Disability Discrimination: The EEOC continues to see a significant number of disability discrimination cases. Those are largely disputes over requests for reasonable accommodations.
• Big Data: The agency recently hired its first chief data officer to help it get up to speed on the technology front.
• Ciao Chai? Lipnic is hoping that Chai Feldblum (D) gets confirmed by the Senate for another term before the end of the year, but she’s also preparing for life after Feldblum. If Feldblum is forced to leave in December, the five-member commission—which currently has three members—would be down to two members, which is not enough for a quorum. Lipnic said the current crop of commissioners is looking at what things they can approve now, that they may not have enough members to green-light later. That includes approving the hiring of expert witnesses in some cases and other significant spending. “We’re preparing for that contingency,” Lipnic said.