While employers may see the Equal Employment Opportunity Commission reprioritize its focus under the Biden administration, changes won’t necessarily come fast.
That’s because the five-member commission will have a Republican majority at least through July 2022.
Nonetheless, employers should expect an agenda that’s more employee-focused and respond accordingly.
This could mean ensuring your company’s sexual harassment policies are up to date, and that employee handbooks have strong language on discrimination based on race and religion.
Employers should make sure anti-discrimination policies and handbooks include sexual preference and gender identification pursuant to the 2020 U.S. Supreme Court decision.
Employers should also expect a stronger focus on the Fair Labor Standards Act as the Biden campaign vowed to “aggressively pursue employers who violate labor laws, participate in wage theft, or cheat on their taxes by intentionally misclassifying employees as independent contractors.”
Biden’s campaign said he would fully empower the EEOC to “address discrimination in the workplace and help close the harmful and unjust gaps in wages and employment opportunities.”
He said he would double the agency’s funding and “empower the EEOC to initiate investigations for all areas of discrimination under its purview.”
Biden also said he would restore the Obama administration's effort to expand the EEOC’s collection of earnings data by race and gender, a program the Trump administration scaled back.
How successful the Biden administration is effecting change on the EEOC and its actions may depend on the outcome of Georgia’s Jan. 5 U.S. Senate runoff elections.
If Republicans maintain control of the Senate, that could hamper any attempts by Biden to make legislative changes that impact the agency.
In fiscal 2020, the EEOC secured more than $535 million to resolve workplace discrimination claims.
Roughly 20% of it—$106 million—came from litigation resolutions, the highest amount the EEOC has recovered in 16 years.
Although some observers expect the EEOC to be more litigious under Biden, those record collections took place under Trump.
If this trend continues, employers could expect increased enforcement activity over the next four years.
However, EEOC Chair Janet Dhillon has stressed litigation as a last resort and has pursued an agenda that favors mediation over legal action.
While Biden can appoint a new chair, he may not initially be able to shift the commission’s priorities until Democrats can claim a majority on the commission.
The commission strengthened its ability to focus on mediation over litigation earlier this year when it passed a resolution that moved authority over litigation actions from the general counsel to the commission.
This gave commissioners sole authority to commence or intervene in litigation, which could result in the EEOC filing fewer enforcement lawsuits against employers.
Other changes the current commission proposed include updating its conciliation program to encourage employers to resolve discrimination charges voluntarily, and revising its compliance manual’s section on religious discrimination.
But Republican control of the EEOC under a Democratic administration could lead to another possibility—a bipartisan approach.