Keep an Eye on EEOC Developments and Trends: President Appoints Acting Chair Victoria Lipnic, and Agency Releases 2016 Enforcement Data

Consistent with his recent flurry of executive actions, President Trump this week named Commissioner Victoria A. Lipnic as Acting Chair of the EEOC. Lipnic has served as an EEOC Commissioner since 2010, when she was nominated for a five-year term by President Barack Obama. Obama nominated her for a second five-year term in 2015. Prior to becoming an EEOC Commissioner, Lipnic served as Assistant Secretary of Labor for Employment Standards under former President George W. Bush from 2002-2009. As Assistant Secretary, she oversaw the Wage and Hour Division, the Office of Federal Contract Compliance Programs, the Office of Labor Management Standards and the Office of Workers Compensation Programs. During an August 2016 speech, Lipnic indicated that she was not supportive of recent changes to the EEO-1 report, which require that employers provide summary wage data, in addition to data on the gender, race and ethnicity of employees. Lipnic’s appointment could portend changes to this report and other EEOC actions, so employers will want to keep a close eye on Lipnic as she settles into her new role in the coming days.

On a related note, just one week before welcoming its new Acting Chair, the EEOC released its “Enforcement and Litigation Data” report for fiscal year 2016. The report provides a breakdown of the workplace charges received by the Agency in fiscal year 2016. For the second year in a row, the number of charges filed with the EEOC increased, reaching a total of 91,503. As in prior years, retaliation was the most frequently alleged type of discrimination.

Of charges filed in fiscal year 2016:

  • 45.9% alleged retaliation
  • 35.3% alleged race-based discrimination
  • 30.7% alleged disability-based discrimination,
  • 29.4% alleged sex-based discrimination
  • 22.8% alleged age-based discrimination
  • 10.8% alleged national original-based discrimination
  • 4.2% alleged religion-based discrimination
  • 3.4% alleged color-based discrimination
  • 1.2% alleged Equal Pay Act violations and
  • .3% alleged violations under the Genetic Information Non-Discrimination Act.

(Percentages exceed 100%, as charges often allege more than one type of discrimination).

Overall, the EEOC secured over $482 million for victims of alleged discrimination in private and public sector workplaces. Breaking some new ground, the 2016 report for the first time provides detailed information about charges alleging LGBT status discrimination, which the EEOC currently interprets as unlawful sex discrimination. The number of LGBT charges has steadily increased since the EEOC began tracking them in fiscal year 2013. In fiscal year 2016, the EEOC received 1,768 LGBT-based charges of sex discrimination and recovered $4.4 million for LGBT complainants.

The EEOC’s fiscal year 2016 Enforcement report provides useful insight into trending complaints and Agency activities over the past year. Based upon the report, employers would be well-advised to seek counsel when dealing with employees who have engaged in any kind of protected activity at work. Experienced counsel can help minimize exposure to potential retaliation claims. Given the continued rise in LGBT-based discrimination complaints, employers may also want to consider additional training for managers and supervisors in this area. Finally, employers should take note that we could see substantial changes to the EEOC’s priorities and enforcement approach under the leadership of President Trump and Victoria Lipnic, but rest assured that we will continue to provide updates on key developments at the EEOC.