In this series, we consider changes that President-elect Trump’s administration could effect through federal agency action (or inaction), including at the Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL), the Occupational Safety and Health Administration (OSHA), and the National Labor Relations Board (NLRB). Our first post focused on changes at the DOL. This second blog focuses on changes that might be made at the Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”).
Occupational Safety and Health Administration (OSHA)
The Trump administration could appoint new OSHA leadership with officials who are less enforcement-minded. In addition, these new appointments could advocate for the adoption of less stringent regulations, and could direct their focus on compliance assistance as opposed to enforcement and litigation. The Obama administration’s Severe Violator Enforcement Program (SVEP), launched in 2010, currently concentrates “OSHA's resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by committing willful, repeated, or failure-to-abate violations.” Pursuant to the SVEP, enforcement actions for severe violator cases include, among other things, mandatory follow-up inspections, corporate-wide agreements (where appropriate), and enhanced settlement provisions. Given President-elect Trump’s repeated campaign promises to decrease regulation and create a “business-friendly” atmosphere, OSHA may not prioritize follow-up inspections, and could impose lower fines or less severe penalties upon employers that violate the Act.
Equal Employment Opportunity Commission
Similarly, the Trump administration could alter the EEOC’s current employment priorities regarding systemic discrimination, binding arbitration agreements, and LGBT rights.
Systemic Discrimination Enforcement
Currently, one of the EEOC’s major priorities is to investigate and file systemic discrimination cases as a means to enhance recoveries to larger groups. Systemic investigations increased by 250 percent from 2011 through 2015, and the EEOC has successfully prosecuted 94 percent of its systemic lawsuits over the past ten years. In addition, the EEOC tripled the amount of monetary relief recovered for victims of systemic discrimination from 2011 through 2015, compared to the relief recovered from 2005 through 2010. However, President-elect Trump’s nomination of Andrew Puzder to the position of Secretary of Labor suggests that he will also appoint individuals to the EEOC who are less concerned with investigation and enforcement, and more focused on compliance assistance.
Binding Arbitration Agreements
The EEOC currently takes the position that forcing an employee to agree to arbitrate any discrimination claims against their employer is unlawful. The commission’s position stems from a policy statement issued in 1997, which provides that “agreements that mandate binding arbitration of discrimination claims as a condition of employment are contrary to the fundamental principles evinced in [the employment discrimination] laws.” In a bid to appear more “employer friendly,” the Trump administration may de-emphasize the EEOC’s focus on binding arbitration agreements, which would allow employers more freedom to determine the best way to resolve disputes with their employees.
The EEOC’s Strategic Enforcement Plan makes clear that applying the protections of Title VII to lesbian, gay, bisexual and transgender individuals is a “top Commission enforcement priority.” Over the last eight years, the EEOC’s attorneys have repeatedly litigated cases in support of this position, and have had success at the ALJ level. For example, in Macy v. Holder, the EEOC ruled that transgender bias is a form of gender discrimination prohibited by Title VII. In addition, in Baldwin v. Foxx, the EEOC “issued an administrative opinion that held for the first time that Title VII extends to claims of employment discrimination based on sexual orientation.” Moreover, the EEOC filed its first-ever federal court Title VII suits over transgender rights in 2015, asserting that Title VII’s prohibition on sex discrimination include discrimination based on gender stereotyping. While President-elect Trump has not made his enforcement priorities clear, it is possible that he could direct the EEOC to temper its focus on LGBTQ protections in the workplace, particularly because at least one Circuit court is currently considering whether Title VII’s protections apply to LGBTQ individuals.