EEOC Update

EEOC Hits the Ground Running in 2016!

Feb 5, 2016

With the issuance of a draft guidance and an announcement that it will be seeking pay data on its annual EEO-1 form in a little over a week, the Equal Employment Opportunity Commission (EEOC) has laid down a marker that it too will play an integral role in advancing President Obama’s public policy agenda during his final year in office.

Here is what the EEOC is out of the gate with so far in 2016:

Updated Retaliation Guidance – On January 21, the EEOC issued draft guidance on preventing retaliation, providing 30 days for public comment. According to the agency, complaints to EEOC of workplace retaliation have grown year over year. The new guidance will replace the current Compliance Manual on Retaliation issued back in 1998 to reflect recent case law and the EEOC’s current interpretations enforcement posture on retaliation cases.

The new guidance defines “protected activity,” including an employee’s opposition to discrimination, which could give rise to a claim of retaliation if interfered with by an employer. The guidance also provides examples of unlawful conduct and includes what the EEOC considers to be “best practices” for employers to avoid retaliation in the workplace. Comments are due to the agency by February 24, and SHRM will be submitting comments on the draft guidance.

Pay Data to be Included in New EEO-1 – The EEOC also announced on January 29, that it is revising its annual EEO-1 report to include the collection of summary pay data by gender, race, and ethnicity from employers with more than 100 employees. The new data reporting requirement was announced in concert with a White House event marking the 7th anniversary of the enactment of the Lilly Ledbetter Fair Pay Act.

In its announcement, the EEOC noted that the new requirements will replace the Equal Pay Report that the OFCCP has been working on for the past two years and expand the Administration’s efforts to collect this type of data beyond federal contractors to include requirements on all employers. SHRM will have an opportunity to comment on this proposal which contains some elements that are similar to last year’s OFCCP proposal. In SHRM’s comments on the OFCCP proposal, the Society identified numerous ways in which we believe the requested data collection requirements (particularly in aggregate form) would not help the agency meet their desired goal; to identify potential pay discrimination and help the government focus its enforcement efforts.

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