In 2023, the Equal Employment Opportunity Commission (EEOC) finally received its full slate of commissioners with three Democrats (Chair Charlotte Burrows, Vice Chair Jocelyn Samuels, and Commissioner Kalpana Kotagal) and two Republicans (Commissioners Andrea Lucas and Keith Sonderling). In addition, the EEOC now has a confirmed general counsel for the first time since 2021.
Employers can expect the agency to move forward on the Biden administration’s much-delayed agenda even though—or maybe because—it will be an election year.
Regulations, Guidance, and Pay Data, Oh My
While the EEOC rarely issues regulations, it was directed by Congress to issue regulations for the Pregnant Workers Fairness Act (PWFA) by the end of 2023. The PWFA became effective on June 27, and the agency’s draft regulations were published in the Federal Register on August 11, with the comment period closing on October 10.
Several issues raised by the comments will have to be resolved, including whether abortion is covered and how long covered employees’ essential functions will be suspended. The Fall Regulatory Agenda—released on December 4—indicated the final regulations will be published by the end of December.
Meanwhile, the EEOC has issued updated harassment guidance for comment as well. The agency allowed only a 30-day comment period that ended on November 1. The guidance isn’t reflected on the Fall Regulatory Agenda, but the agency is expected to issue the final guidance soon.
Chair Burrows has stated she wants the commission to reinstate federal pay data collection. As there is only a year left in this Biden term, the agency will have to move quickly to roll a new pay data collection out. The previous EEO-1 Report Component 2 was proposed in the last year of the Obama administration but was only approved shortly before the 2016 election and was only reinstated after litigation.
The agency will have to consider the National Academy of Science’s report on the previous pay data collection as it develops the new Component 2.
Litigation
One of the issues raised during confirmation hearings of the new Democratic EEOC Commissioners was whether the new Democratic majority would redelegate litigation authority from the commission to the general counsel. In fiscal year (FY) 2023, the agency filed 143 new lawsuits, which was a 50% increase from the number of new cases filed in the previous fiscal year.
Recently, Commissioner Andrea Lucas said employers should expect an increase in litigation with the full Commission and new general counsel.
Increased Enforcement of Disability and PWFA Rights
In the early days of FY2024, the EEOC has already settled three disability discrimination cases. Papa John’s agreed to pay $175,000 for refusing to accommodate an applicant’s service dog. Citizens Bank agreed to pay $100,000 for refusing to accommodate an employee’s anxiety by reassigning him to a less stressful position. Finally, Cloudbeds is paying $150,000 for refusing to accommodate an deaf applicant claiming that verbal communications and hearing were job requirements.
The EEOC also negotiated a settlement with Frontier Airlines to allow pilots to pump breastmilk in the cockpit during noncritical phases of a flight.
In addition, the airline will allow pregnant pilots to fly with a medical certification, will accommodate pilots unable to fly because of pregnancy or lactation the same way it accommodates pilots unable to fly because of other medical conditions, will permit breastfeeding pilots to drop to 50 hours of flight time per month, and will maintain a list of airport lactation facilities.
H. Juanita Beecher is an attorney with FortneyScott in Washington, D.C. You can reach her at nbeecher@fortneyscott.com.
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