Robert J. O’Hara, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in the Bloomberg Law Daily Labor Report, in “Employers Watching for EEOC Action on Pay Data, Other Policies,” by J. Edward Moreno. (Read the full version – subscription required.)

Following is an excerpt:

Employers are anticipating a federal pay data reporting requirement in 2023 as the makeup of the US Senate shifts, potentially placing another Democrat on the EEOC and tipping the balance of the workplace civil rights agency.

Democrats held the Senate in the midterm elections, meaning President Joe Biden’s nominee for a vacant seat on the five-member US Equal Employment Opportunity Commission could advance through the confirmation process in 2023. That would give Democrats control of the agency, which employers expect they’ll use to enact a pay data reporting requirement to address persistent gender and race wage gaps. ...

Biden failed in 2022 to get Senate confirmation of his nominee to fill a vacant seat on the commission, civil rights attorney Kalpana Kotagal. If she’s confirmed in 2023, the EEOC would have a Democratic chair, Charlotte Burrows, and a Democratic voting majority for the first time since 2016, allowing the agency to move forward on several progressive priorities.

“I expect that they have two years of pent-up demand here to actually go out and do a bunch of other things,” said Robert O’Hara, a partner at Epstein Becker Green PC. “My expectation as a practitioner in this area, is that they will be pushing a lot of agenda items they haven’t been able to thus far.” …

The EEOC published a technical assistance document in June 2021 interpreting the scope of the US Supreme Court’s Bostock v. Clayton County decision, which extended LGBT worker protections under Title VII of the 1964 Civil Rights Act, to also protect their use of pronouns and bathroom facilities that don’t correspond with their gender assigned at birth. A Texas federal judge ruled in October that doing so was beyond the scope of Bostock.

Republican commissioners criticized Burrows for unilaterally publishing the technical assistance document without a commission vote. But with a Democratic majority, Burrows could address the issue through a formal guidance document voted on by the commission. “My guess is that’s why they weren’t putting it in front of the full commission, because they didn’t have the votes,” O’Hara said. ...

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