Former EEOC Leaders to Share Insights on Workplace Inclusion

As federal policies around workplace inclusion and diversity shift, former U.S. Equal Employment Opportunity Commission (EEOC) leaders Jenny Yang and Victoria Lipnic will share their insider perspectives on what employers need to know to stay compliant, avoid risk, and sustain inclusive workplaces. 

SHRM CHRO Jim Link will moderate the discussion Oct. 27 at SHRM BLUEPRINT in Louisville, Ky. The session will focus on how executive and regulatory actions will shape the post-2025 equal employment opportunity landscape, steps employers can take to avoid costly legal and reputational risks, and how to prepare organizations for compliance in the years ahead. 

SHRM spoke with Yang, a partner in Outten & Golden's Washington, D.C., office, former commissioner and chair of the EEOC during the Obama administration, and former director of the Office of Federal Contract Compliance Programs at the Department of Labor during the Biden administration, about her tenure at the EEOC and her thoughts on the agency's recent actions.

Event: SHRM BLUEPRINT

SHRM: What were the highlights from your time as a commissioner and chair of the EEOC? 

Yang: To strengthen the EEOC's ability to tackle systemic problems, we enhanced the agency's collection of workforce demographic data to include pay data. For nearly 60 years, the EEOC has collected workforce demographic data from employers to focus its enforcement. When a worker alleges discrimination in hiring, the EEOC can compare workforce data to the local qualified labor pool to identify whether employers are fully utilizing talent — or whether the employer may impose artificial requirements.  

A persistent challenge facing the agency was that we lacked data to assist us in identifying potential pay discrimination. Too often employees did not know when they faced pay discrimination, given the secrecy around pay. During my tenure as chair, we initiated collection of aggregate pay data. The EEOC collected this data for two years before it was halted [in 2019]. This data would have provided the agency with valuable visibility into compensation disparities across industries, enabling more focused investigations, and encouraging employers to proactively address pay equity issues. 

During my tenure, I witnessed how our nation's understanding of equality has evolved. I found it meaningful to vote with the majority of the commission on several federal-sector cases interpreting Title VII [of the Civil Rights Act of 1964] to find that the plain language of the statute prohibits sex discrimination based on sexual orientation and gender identity. The Supreme Court later reaffirmed these protections in its landmark ruling Bostock v. Clayton County.  

The EEOC also tackled harassment before the #MeToo Movement brought renewed attention to sexual harassment. My colleagues and I on the commission were alarmed to see widespread and egregious harassment around the country. We didn't have the resources to litigate every charge that warranted our attention, so I asked my colleagues, then Commissioners Victoria Lipnic and Chai Feldblum, to co-chair a bipartisan task force to bring together experts from a broad array of perspectives to identify innovative prevention strategies. The co-chairs of the Select Task Force on the Study of Harassment in the Workplace Task Force issued a comprehensive report in 2016, which served as an invaluable resource — especially after the #MeToo movement brought renewed focus to workplace sexual harassment. General counsels of large corporations shared that they had read every footnote in that 89-page report and made changes to their practices as a result.  

My time at the EEOC reinforced how important it is to listen to different perspectives. This helped me appreciate where the EEOC could provide needed clarity on complex areas of law and how to balance competing interests. I established our first public input process for guidance, enhancing our guidance documents through feedback from a wide range of stakeholders, and worked to modernize the agency by implementing our first online portal for electronic submission of charge information, improving customer service for both employees and employers while increasing efficiency.

Toolkit: Managing Equal Employment Opportunity

SHRM: What directions do you see the EEOC heading thus far in the second term of the Trump administration? 

Yang: This administration has already implemented significant changes at the EEOC that represent a fundamental shift from the agency's historic role in civil rights enforcement.  

A new administration may of course establish its enforcement priorities, but the EEOC must operate within the law when it does so. Although the administration has a strong viewpoint on DEI efforts, the EEOC cannot alter employers' substantive responsibilities under anti-discrimination laws. The administration can only enforce what has always been against the law. Diversity, equity, and inclusion efforts have been fundamental to strengthening merit-based selection by eliminating employment practices that unfairly excluded qualified individuals based on race, sex, and other characteristics, expanding employers' access to the full talent available. These initiatives ensure that talent is recognized and create genuine merit-based systems and provide everyone with a fair chance to compete and contribute their talents.   

The administration has already dismissed cases and charges concerning discrimination based on gender identity — a move that denies the EEOC's protection over an entire category of charges because they allege a particular type of legitimate claim prohibited by Title VII as interpreted by the Supreme Court.  

On April 23, President Trump issued an executive order ending federal enforcement of disparate impact discrimination claims. As a result, the EEOC has dismissed a case alleging race discrimination in the use of a criminal background screen, and it has been reported that investigators have been directed to close charge investigations alleging a discriminatory disparate impact. For over 50 years, the Supreme Court has recognized this important tool for proving systemic discrimination when policies appear neutral on their face but function to systematically exclude individuals from employment opportunities based on race, gender, or another protected bases for reasons that are not necessary for the jobs. Congress explicitly codified this form of discrimination in the Civil Rights Act of 1991, and it remains the law. Although the EEOC has signaled it will focus on disparate treatment discrimination, employees will continue to bring these challenges.

Toolkit: Belonging Enhanced by Access through Merit (BEAM)   

SHRM: What do you hope attendees of BLUEPRINT will take away from your upcoming presentation? 

Yang: In this time when it may seem confusing and risky to continue the work of equal opportunity, it is essential for organizations not to retreat. When all employees thrive, organizations innovate and achieve new levels of productivity. Strong teams benefit from organizational structures and cultures where individuals air differing viewpoints and voice concerns, which allow organizations to reach better decisions that expand their customer base, prevent harmful errors, and attract and retain top talent.