EEOC Commissioners "Chat" at SHRM Conference

It was a privilege for me to attend and speak at SHRM’s Employment Law and Legislative Conference in  Washington, D.C.

 

For me, one of the high points was listening to the presentation by EEOC Commissioners Chai Feldblum and Victoria Lipnic.

While not quite the same as being there, I wanted to share with you what I tweeted during and after their presentation, which actually was  a  “chat.”

When I begin with “Segal,” these are my thoughts. It is not what I said.

 

I added a few words for clarity; my blog does not restrict me to 144 characters!

 

 Jonathan A Segal ‏@Jonathan_HR_Law 

 

#SHRMLeg SHRM's Lisa Horn @shrmlobbystlisa of SHRM graciously thanks the EEOC for considering our input and listening carefully even when we don't agree

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Commissioners Chai Feldblum and Victoria Lipnic take the stage; they decide they will ask each other questions

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Both commissioners are from different political parties, but it is clear there is mutual respect. Yes, I am in DC. How refreshing!

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Commissioner Feldblum refers to herself as "twitter geek." I am twitter geek too. Follow her. Appreciate her transparency! 

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Commissioner Feldblum explains that Congress required bi-partisan EEOC. Civil rights should be bi-partisan issue. Sure was today.  Should be everyday. 

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Feldblum-Democrat. Lipnic-Republican. Reflects split on commission. 2 Ds and 2 Rs. But they get things done. Nice model

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Commissioner Lipnic emphasizes accountability of EEOC. Nice!

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Commissioner Feldblum also acknowledges accountability and then discusses priorities

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Commissioner Feldblum made clear appropriately that, even if not priority issues, if Commission sees discrimination, it will respond to it

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Commissioners Feldblum and Lipnic then explained the priorities with Commissioner Feldblum taking the lead. I will list them

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg EEOC Priority: Eliminate barriers in recruitment and hiring. Focus on class-based barriers

 

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Eliminate Barriers: need to look not only at disparate treatment but also at disparate impact.

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Priority: Protect immigrants, migrants and other vulnerable workers. These individuals may not be aware of their rights

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Priority: Address emerging and developing issues, such as LGBT issues

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Priority: Enforce equal pay laws. We heard a lot of talk about this, didn’t we?

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Priority: Preserve access to the legal system. Although not said, I think the Commissioners were thinking of, among other things, retaliation. Most common charge filed with EEOC. Train your managers on retaliaton.

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Priority: Prevent harassment. Focus on education and outreach [Segal: yes!] 

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Interesting discussion of leave and ADA. Commissioner Lipnic: isn't that for Congress to decide? (lots of clapping)

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Commissioner Lipnic referred to ADA as accidental leave law

 

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Quick retort by Commissioner Feldblum--Congress was aware that leaves would be potential accommodation when ADA was enacted

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Commissioner Feldblum also pointed out that, since 2002, EEOC has made clear that leave may be reasonable accommodation

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Commissioner Feldblum stated EEOC's enforcement position: automatic termination provision after specified period of time per se violation of ADA [Segal: check EEOC website for examples of settlements] 

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Commissioner Feldblum: Employers need to make individualized assessments

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Segal: I was not up there but here's what I thought: individualized assessments guarantee more disparate treatment claims

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Segal: However, I would rather defend disparate treatment claim than class action claim; automatic terminate rules create commonality for class actions

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Question from attendee.  Is attendance an essential function of at least some jobs? Segal: Not sure our panelists agreed

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Commissioner Lipnic: Attendance is an essential function. (I think that's what she said; a lot of clapping from attendees)

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Comissioner Feldblum responds: Have to be able to attend TO job but that does not answer whether leave is reasonable accommodation. [Segal: great nuance, but can average employer get it?] 

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Commissioner Lipnic light-heartedly referred to "reasonable" as "pesky" word. By pesky she meant: let's not forget that reasonableness inquiry is always part of the equation.

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Commisioner Feldblum:  There are leaves that I would not consider reasonable accommodations. She then explained why she wants more guidance

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  We got to hot button issue: guidance on criminal background checks

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Commissioner Feldblum: Guidance is nothing new; it has been around since 1987; just updated

[Segal: but updates are material in some respects] 

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Question from audience: what if state law mandates background checks. Can we really be sued, yes or no?

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Commissioner Feldblum: Title VII preempts state and local laws that are inconsistent with it.

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Commissioner Lipnic: I think we should announce non-enforcement position where guidance conflicts with state law

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Commisioner Feldblum: I think we need more collaboration among federal government, state AGs (attorney generals) and employers

 

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Segal:  Can we agree no lawsuits on this issue while we collaborate? Less money for lawyers and more for employees! Can we all agree on that? 

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Question from attendee:  What percentage of charges does EEOC find cause?

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Commisioner Feldblum: only about 5%. But that number is misleading. Does not count settlements.

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Commissioner Feldblum: Plus, 5% does not count cases that may have merit where employees simply seek right to sue letter

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Segal:  If employee simply wants right to sue letter, why make employer spend time and money responding?  

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Oh, no, we are out of time.

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg Segal:  Don't always see every issue the same as EEOC. But my respect for its thoughtfulness is greater after today

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Talking with members about "chat" between EEOC Commissioners Feldblum and Lipnic. Words I hear: open, refreshing, thoughtful, smart and other praise.

 

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Segal: proof that people of different parties and of good faith can work effectively 

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Segal: When the EEOC asks for your opinion, please respond. Explain, please don't attack!

Jonathan A Segal ‏@Jonathan_HR_Law 

#SHRMLeg  Kudos to Bob, Carlos. Lisa, Mike, Mike and Nancy (alpha order) for the entire Conference! 

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