On January 25, 2017, Victoria Lipnic was appointed acting chair of the Equal Employment Opportunity Commission (“EEOC”), and members of the legal community believe that her appointment could move the EEOC in a more management-friendly direction. Lipnic has served as a Commissioner of the EEOC since 2010, having been nominated by Barack Obama to two consecutive terms, the second of which is set to expire in 2020. Immediately prior to joining the EEOC, Lipnic was a management-side labor and employment attorney for an international law firm and also served as the U.S. Assistant Secretary of Labor for Employment Standards from 2002 until 2009 under President George W. Bush. In that position, she oversaw the Wage and Hour Division, the Office of Federal Contract Compliance Programs, the Office of Workers’ Compensation Programs and the Office of Labor Management Standards.
Lipnic has been vocal about areas where she sees the EEOC overreaching its authority or overburdening employers. Recently, Lipnic has spoken out about the EEOC’s controversial new requirements of employers on the EEO-1 Report regarding the gender/pay disparity. Under the EEOC’s new regulations, in addition to reporting data on race, gender, ethnicity and job category, employers are required to include information about the number of workers within 12 specified pay bands. Although the first revised EEO-1 report is not due until March 2018, employers have raised concerns over the substantial costs involved in producing the information required and bringing their compensation schemes into compliance. Lipnic has said that while she supports equal pay initiatives, she questions whether the EEOC’s current approach is the best way to achieve its goals. Although Lipnic’s appointment as acting chair does not mean she will remain in the position permanently, her eventual permanent appointment seems likely due to her experience and generally positive reputation for bi-partisan work.
Based on her background and recent statements, it is generally suspected that Lipnic will oversee a rollback of what she and the current administration view as overly burdensome EEOC regulations. It is also possible that other EEOC initiatives, such as recent efforts to prioritize LGBT issues and enforcement, may become less of a priority for the EEOC. The EEOC’s enforcement tactics could also see a marked change under new leadership. During the Obama administration, the EEOC pursued its agenda, in part, by demanding substantial sums from employers to settle charges of discrimination and retaliation. To employers, these demands often seemed random, in part because the EEOC would refuse to offer any basis for arriving at the figure. This also caused employees to carry unreasonable expectations about the potential recovery on their claims at trial and to thus be more inclined to reject settlement offers from the employer. Under new leadership, the prevailing policies and enforcement tactics could (and likely will) undergo substantial change, resulting in a lesser administrative burden for retailers.