The MSBA’s Labor and Employment Law Section received a first-hand report from the highest reaches of the U.S. Equal Employment Opportunity Commission (EEOC) when Section Council Chair John A. Henderson, Jr. hosted A Conversation With EEOC Vice Chair Jocelyn Samuels on March 24, 2021. Responding to a variety of questions posed by Administrative Law Judge Henderson and a remote audience, Commissioner Samuels discussed the Biden administration’s plans to combat workplace discrimination, the EEOC’s bipartisan response to COVID-19, the expansion of Title VII protections to the LGBTQ community, and the impact of recent rule changes on EEOC’s enforcement program.
Commissioner Samuels was appointed to the EEOC by President Trump in 2020 and named its Vice Chair by President Biden on January 20, 2021. She previously served in the Obama administration as Acting Assistant Attorney General for Civil Rights and as Director of the Office of Civil Rights at the Department of Health & Human Services. Earlier in her career, she was an EEOC policy attorney, labor counsel to Senator Edward Kennedy, and the Executive Director of the UCLA School of Law Williams Institute, a think tank devoted to studying sexual orientation and gender identity law and policy. Returning to the EEOC, she said, was both a homecoming and a culmination of a career path influenced by her coming of age during the civil rights era.
Commissioner Samuels views government as a potential force for good in improving the lives of vulnerable communities, and believes that as a bipartisan agency, the EEOC is well positioned to do just that. The civil rights implications of COVID, she believes, is fundamentally a non-partisan issue that will demand a great deal of attention in the months ahead. Decisions will be informed by the science, and the Commission will pay close attention to the recommendations of the CDC, OSHA, and others as it develops policies to guide and educate the public about their respective employment rights and responsibilities as the pandemic continues to unfold.
EEOC Chair Charlotte A. Burrows will hold hearings in April to investigate the employment rights implications of the pandemic. The Commission will hear from experts about COVID’s heath consequences and its economic impact as it relates to the workplace. Commissioner Samuels noted that while it is already clear that COVID has disproportionately affected women, people of color, older workers, and people with disabilities, the EEOC seeks a better understanding of the barriers that have been erected in the workplace for these groups. The EEOC will also explore whether and to what extent COVID “long haulers,” victims whose symptoms last for months rather than weeks, become disabled to the point that ADA accommodations are required, and whether the nation’s work-from-home experience will impact what the law will consider “reasonable accommodations” in such instances in the future.
Commissioner Samuels sees opportunities for transformational progress in the quest for racial justice as the country emerges from a year dominated by the pandemic, the deaths of George Floyd, Breonna Taylor and others, the resurgence of white supremacy, an increase in racially motivated hate crimes, and the Capitol insurrection. As these events helped to expose systemic barriers and structural inequities that have plagued our democracy since its founding, they have also galvanized a broad based multi-racial and multi-generational movement committed to rectifying them. The Commissioner is also encouraged by President Biden’s inauguration day executive order that requires all federal agencies to consider the impact of its policies and actions on disadvantaged communities whenever they take official action.
In the Commissioner’s view, these developments present opportunities to expose employment practices that continue to promote discriminatory regimes, even when unintentional. Commissioner Samuels cited reliance on criminal background checks and the use of artificial intelligence and algorithmic decision-making as areas of concern that she hopes the EEOC will address.
Pay equity was an obvious subject of discussion during a program held on national Equal Pay Day. The Commissioner noted that gender-based pay discrimination persists despite the passage of the first Equal Pay Act in 1963, and the Lilly Ledbetter Fair Pay Act of 2009. With women earning only $0.82 for every dollar paid to men (and women of color earning even less) the Commissioner expects the EEOC to remain active in this arena.
She characterized pay disparities as an “invisible” problem because pay data remains a closely guarded secret in corporate America. Commissioner Samuels believes that the key to resolving gender-based disparities lies in the collection of reliable payroll data, something that is slowly beginning to occur in some state and federal agencies, and to a lesser extent in industry. The Commissioner acknowledged the pay data collection has a tortured history at the EEOC, but she believes that it is a practice the Commission will pursue, finding ways to balance the burden placed on employers with the need for information necessary to evaluate pay discrepancies. Meanwhile, the EEOC will continue to litigate when necessary to hold employers accountable, educate the courts and the public, and seek justice for those adversely affected by discriminatory pay practices.
On the subject of litigation, Commissioner Samuels expressed concern for internal rule changes that were made by separate 3-2 votes just before the January 2021 change in administrations. The EEOC modified its delegation of litigation authority policy to now require the entire Commission to review every enforcement action that its General Counsel or field litigators want to file in court. Until now, these decisions were made by the General Counsel’s office, with exceptions for cases with significant policy implications. The Vice Chair, who voted against this proposal, believes that it is an inefficient use of resources and that having all five commissioners weigh in on every litigation decision will result in unnecessary delays in enforcement.
The Commission also amended its conciliation requirement, mandating that the EEOC must seek to eliminate allegedly unlawful conduct informally through conference, conciliation and persuasion every time the EEOC finds reasonable cause to charge workplace discrimination. While she agreed that conciliation is an important tool and is appropriate in many cases, requiring it in all cases, she believes, will result unjust delay. In her view, conciliation has historically spawned satellite litigation that deflects attention from the underlying issues and defers final resolution for many years. The new conciliation rule has been challenged in both the Senate and the House and will now undergo congressional review.
Commissioner Samuels was proud of the EEOC’s success in having the Supreme Court interpret Title VII to prohibit workplace discrimination based on sexual orientation and gender identity last year in Bostock v. Clayton County. She is personally committed to ensuring that the EEOC maintains a robust leadership role in this area, making sure that members of the affected communities are aware of their rights and that employers are aware of their obligations. The Commissioner acknowledged that the EEOC has been slow in its outreach efforts and in providing in-house training necessary to establish the technical competence to fully enforce the rights of the LGBTQ community. She expects this to change.
As with everything that the EEOC does, much of this work will depend on the availability of reliable data in support of informed decision making. Commissioner Samuels is encouraged by the Biden administration’s formation of the Equitable Data Working Group to marshal and share data that will assist the EEOC and other federal agencies to make data-based decisions to accomplish their respective missions.
The Vice Chair took questions from section members, thanked them for the opportunity to meet virtually, and said that she looked forward to continuing the conversation, hopefully in the not too distant future, in person.