The ACC “Meet the Regulator” series provides members with the exclusive opportunity to sit down with agency personnel to discuss issues of mutual importance. The Chatham House Rule forum allows both sides to analyze the practical implications of regulatory rules and agency guidelines in the constantly evolving effort to find areas for clarification and improved implementation. On Nov. 13, ACC Advocacy, along with the Employment and Labor Law Committee, met with Commissioners Victoria Lipnic and Chai Feldblum of the Equal Employment Opportunity Commission to participate in a robust dialogue pertaining to recent EEOC enforcement initiatives, enforcement priorities and regulatory actions.
ACC members met in Washington, D.C., at the EEOC’s headquarters. At the top of the order was a conversation pertaining to notice charges issued by the EEOC. It was brought to the attention of the commissioners that several employers are beginning to receive notice charges that have never been perfected. To obtain a better grasp of how many in-house counsel are being impacted by these unperfected charges, we’re requesting anyone who has received a charge of this nature to email Paul Goatley with the ACC (firstname.lastname@example.org). The conversation then turned to conciliation, which centered around a discussion of a pending U.S. Supreme Court Case, Mach Mining v. Equal Employment Opportunity Commission. Mach Mining will address the issue of whether or not an employer has an affirmative defense when the EEOC fails to conciliate in good faith. This is a case worth keeping an eye on, as it may have a deep impact on pre-litigation settlements moving forward. In addition to the above, the enforcement-issue discussion touched on severance agreement provisions. If you include severance provisions in your employment agreements, a recent EEOC case in the U.S. District Court for the Northern District of Illinois, EEOC v. CVS Pharmacy, Inc., may be worth a look to assess the validity of clauses in your standard separation agreements. While the case was dismissed for the agency’s failure to conciliate, the case is significant in that it shows the EEOC’s desire to challenge many common severance agreement provisions.
The conversation then transitioned to regulatory actions undertaken by the EEOC, addressing, among other things, the religious and pregnancy accommodation guidelines. The latter effectively treats pregnancy as a disability and, thus, subject to reasonable accommodation scrutiny. Under the guidance, an employer must treat pregnant employees the same as non-pregnant employees “who are similar in their ability to work.” A few concerns were expressed about how this might play out in the workers compensation context. It was surmised that the guidance may require an employer to be subjected to an ADA disability claim for a non-work related disability if they do not offer that employee an alternative light duty assignment. If you are grappling with how to comply with the these guidelines, it may be beneficial to keep your eye on Young v. United Parcel Service, which addresses the above issue and is currently in front of the U.S. Supreme Court.
If you are interested in participating in — or facilitating — a future ACC Meet the Regulator event, please let us know!