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Washington Labor & Employment Wire » Equal Employment Opportunity Commission

Obama Nominates Victoria A. Lipnic as an EEOC Commissioner

On November 3, 2009, President Obama nominated the Honorable Victoria A. Lipnic as a Commissioner on the Equal Employment Opportunity Commission (EEOC). Lipnic’s nomination has been sent to the Senate Committee on Health, Education, Labor, and Pensions for confirmation. 

Lipnic, a Republican, served as U.S. Assistant Secretary of Labor for Employment Standards from 2002 until 2009. While at the Department of Labor, Lipnic oversaw the Employment Standards Administration, which enforces labor and employment laws affecting 135 million workers in 7.3 million workplaces. Lipnic worked to revise the Family and Medical Leave Act regulations, modify certain overtime regulations under the Fair Labor Standards Act, and increase the Department’s responses to wage and hour opinion letter requests. In addition to her work with the Department of Labor, Lipnic also served as Workforce Policy Counsel to the House Republican members of the Education and Labor Committee and was in-house counsel to the U.S. Postal Service.

Lipnic currently resides in Virginia and is engaged in the private practice of law in Washington, DC. She received her Juris Doctor from George Mason University School of Law and her Bachelor’s Degree from Allegheny College in Pennsylvania.

President Obama has previously nominated Jacqueline Berrien and Chai Feldblum as Commissioners. Berrien and Feldblum, both Democrats, currently await Senate confirmation. It is expected that, if confirmed, Berrien and Feldblum would be designated by the President as EEOC Chair and Vice Chair, respectively. Obama’s nomination of a Republican to join the Commission may hasten the confirmation of all three nominees.

Obama Nominates Lopez as EEOC General Counsel

On October 26, 2009, President Obama formally nominated  P. David Lopez as General Counsel for the Equal Employment Opportunity Commission (EEOC). The nomination has been referred to the Senate Committee on Health, Education, Labor, and Pensions for confirmation.

Lopez currently serves as a Supervisory Trial Attorney at the EEOC’s Phoenix District Office. The Harvard Law graduate has previously worked as a Special Assistant to then-Commissioner Gilbert F. Casellas, as well as an attorney in the Employment Litigation Section of the Civil Rights Division of the U.S. Department of Justice.

The EEOC’s General Counsel position has been vacant since Ronald Cooper’s resignation earlier this year. Obama announced his intent to nominate Lopez for the position on October 22.

Obama Announces Intended Nomination of P. David Lopez as EEOC General Counsel

On October 22, 2009, President Obama announced his intent to nominate P. David Lopez as General Counsel for the Equal Employment Opportunity Commission (EEOC). The EEOC’s General Counsel directs the Commission’s litigation through the agency’s district offices, which file and litigate the Commission’s lawsuits throughout the country.

Lopez began his career at the EEOC in 1994 as a Special Assistant to Commissioner Gilbert F. Casellas. He currently serves as a Supervisory Trial Attorney at the EEOC’s Phoenix District Office. Prior to joining the Commission, Lopez worked at the U.S. Department of Justice in the Employment Litigation Section of the Civil Rights Division. Lopez received his Juris Doctor from Harvard Law School and his Bachelor’s Degree in Political Science from Arizona State University.

The White House has not yet indicated when President Obama’s final nomination will be announced. If nominated and confirmed, Lopez would serve a four-year term.

EEOC Publishes Proposed ADA Regulations

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On September 23, 2009, the EEOC’s Notice of Proposed Rulemaking (NPRM) regarding the ADA Amendments Act of 2008 (the Act) was published in the Federal Register. Passed almost one year ago and effective since January 1, 2009, the Act explicitly invalidated certain EEOC regulations and several Supreme Court decisions interpreting the ADA. The EEOC’s NPRM contains proposed regulations and interpretive guidance in response to the Act.

The Act expands the definition of “disability” under the ADA to be construed more broadly than in the past, in an effort to make it easier for an individual to establish that he has a disability within the meaning of the ADA. According to the EEOC’s proposed regulations, the determination of whether an individual has a disability should not demand extensive analysis. Instead, the focus of an ADA case should be on whether discrimination occurred.

The proposed regulations broaden the scope of a “disability” in a number of ways. The proposed regulations expand the definition of “major life activities” to include “major bodily functions,” such as breathing, cell reproduction, and immune system function. They provide that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Additionally, the proposed regulations provide that mitigating measures other than ordinary eyeglasses or contact lenses should not be considered when assessing whether an individual has a “disability.” Finally, the proposed regulations revise the definition of “substantially limits” a major life activity and “regarded as” disabled in an effort to make it easier to satisfy the definition of “disability.” 

The proposed regulations were approved by 2-1 vote on September 16, 2009.  There will be a 60-day public comment period following the NPRM’s September 23, 2009 publication in the Federal Register.  Written comments should be submitted to EEOC via U.S. mail, facsimile, or electronically by November 26, 2009.

EEOC Approves Notice of Proposed Rulemaking on ADA Regulations

On September 16, 2009, by a 2-1 vote, the Equal Employment Opportunity Commission (EEOC) approved a Notice of Proposed Rulemaking (NPRM) revising its regulations under the Americans with Disabilities Act (ADA). Necessitated by the ADA Amendments Act of 2008, the NPRM makes significant changes to how the term “disability” is defined, expanding the scope of persons considered disabled under the ADA. 

The ADA Amendments Act stated several Supreme Court decisions and certain EEOC regulations construed the definition of “disability” too narrowly, improperly precluding individuals with impairments that were episodic or in remission from being considered disabled. The NPRM emphasizes that the definition of disability - an impairment that poses a substantial limitation in a major life activity - must be construed broadly and should not require extensive analysis.

Acting EEOC Vice Chair Christine M. Griffin said, “Congress recognized that the intent of the ADA was being misread, that its goals were being compromised, and that action had to be taken.  These regulations will shift the focus of the courts away from further narrowing the definition of disability, and put it back where Congress intended when the ADA was enacted in 1990.”

The NPRM carries a 60-day period for public comment. The comment period will officially commence upon publication of the NPRM in the Federal Register.

Obama Nominates Chai Feldblum as EEOC Commissioner

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On September 15, 2009, President Obama nominated Chai R. Feldblum as a Commissioner on the Equal Employment Opportunity Commission. Feldblum, a Democrat, was nominated for a term expiring July 1, 2013. If confirmed, Feldblum would fill the slot left vacant by the expiration of Republican Leslie Silverman’s term in July 2008.

Feldblum played a leading role in drafting the Americans with Disabilities Act of 1990, as well as in passing the ADA Amendments Act of 2008. She has worked to advance flexibility in the workplace, founding Workplace Flexibility 2010, a campaign to support the research and development of a comprehensive national policy on workplace flexibility by 2010. Feldblum has long been an advocate for disability rights, lesbian, gay, bisexual and transgender rights, and AIDS-related issues. The White House describes her as a “leading expert” on the Employment Nondiscrimination Act.

Since 1991, Feldblum has been a Professor of Law at the Georgetown University Law Center.  There, she founded the Law Center’s Federal Legislation and Administrative Clinic, a program designed to encourage and train students to become effective legislative lawyers. Feldblum also served as legislative counsel to the ACLU’s AIDS project.

EEOC Approves Proposed GINA Regulations for OMB Review

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On August 6, 2009, the Equal Employment Opportunity Commission (”EEOC”) approved (apparently by notation vote) a final version of its regulations interpreting Title II of the Genetic Information Nondiscrimination Act (GINA), which (1) prohibits employers from discharging, refusing to hire, or otherwise discriminating on the basis of genetic information, (2) bars employers from intentionally requesting, requiring, or purchasing genetic information about applicants and employees, and (3) imposes strict confidentiality requirements regarding genetic information.

Title II becomes effective on November 21, 2009.  The statute instructs the Commission to issue final regulations for Title II a year after enactment, which would have been May 21, 2009.  The EEOC published the proposed rule in early March, and it received more than 40 responses during the 60-day public comment period.  The proposed regulations will now go to the White House Office of Management and Budget for review.  If approved, the final rule will be published in the Federal Register.

President Obama Announces Pick for New EEOC Chair

On July 16, 2009, President Obama announced his intent to nominate Jacqueline A. Berrien as Chair of the Equal Employment Opportunity Commission. Berrien has served as Associate Director-Counsel of the NAACP Legal Defense and Education Fund since September 2004.  From 2001 to 2004, Berrien was a Program Officer in the Ford Foundation’s Peace and Social Justice Program. Berrien also worked for eight years as a staff attorney with the Lawyers’ Committee for Civil Rights and the American Civil Liberties Union.

In a statement issued by the White House, President Obama said “Jacqueline Berrien has spent her entire career fighting to give voice to underrepresented communities and protect our most basic rights. Each of us deserves a fair chance to succeed in our workplace and make a contribution to this nation, and I’m confident that Jacqueline’s passion and leadership will ensure that the Equal Employment Opportunity Commission is living up to that mission. I look forward to undertaking this important work with Jacqueline in the months and years ahead.”

Commissioner Stuart Ishimaru has been serving as the Commission’s Acting Chair since January 23, 2008. Acting Vice Chair Christine Griffin’s term expired July 1, 2009, but she may remain for 60 days without any action by the White House. President Obama has nominated Griffin to be deputy director of the Office of Personnel Management. Commissioner Naomi Earp resigned on June 7, 2009, leaving Constance Barker as the only remaining Republican commissioner.

EEOC Conducts Hearing on Age Discrimination and Issues Technical Guidance Document

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On July 15, 2009, the Equal Employment Opportunity Commission (EEOC) held a hearing in Washington, D.C. concerning age discrimination, with testimony received from three panels.   The EEOC also issued a technical assistance document, “Understanding Waivers of Discrimination Claims in Employee Severance Agreements” to address a growing concern.  The meeting was chaired by Acting Chairman Stuart Ishimaru and attended by Vice Chair Christine Griffin and Commissioner Constance Barker.

The three Commissioners uniformly expressed concern with age discrimination and a strong desire to address it. Chairman Ishimaru noted that age discrimination claims were up 29% over the prior year and that one-quarter of EEOC charges included an age discrimination component.  He explained that the issue cuts broadly across social status, race, gender, and many other categories. The Commission expects the trend of rising claims to continue.

The first panel included two university professors and Rae T. Vann, General Counsel for the Equal Employment Advisory Council. Purdue University management professor Michael Campion addressed stereotyping in the workplace and its effect on age discrimination and presented several recommendations for employers, including (1) focusing on the individual, job related characteristics of employees; (2) starting with analysis of the work to be done, and the knowledge, skills and other human attributes required to perform that work; and (3) monitoring the impact of employment decisions on age, just as they should do for race and gender, and taking action when disparities occur.

American University law professor Cathy Ventrell-Monsees testified concerning the judicial treatment of age discrimination. In asserting that age discrimination is treated differently than other forms of discrimination, Ventrell-Monsees, who is also president of Workplace Fairness, a non-profit employee rights organization, focused largely on what she called “the epitome of judicial activism” in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2348 (2009), where Justice Thomas’s majority opinion created the requirement that age discrimination must be a “but-for” cause in ADEA cases. Ventrell-Moses recommended that the EEOC issue regulations that fully define the components of the “reasonable factor other than age” defense, and develop policy guidance applying Supreme Court precedent to explain the standards for examining relevance and weight of ageist comments and make application of such standards uniform across Title VII, the ADEA, and ADA. In her published remarks, she also urged Congress to eliminate the differences between the ADEA and Title VII, including (i) overturning three recent Supreme Court decisions; (ii) applying the same standards of proof for disparate treatment and impact claims; (iii) applying the same remedies; (iv) applying the same class action procedures; (v) applying the same coverage to state governmental employees, and (vi) requiring greater deference to EEOC regulations and rulemaking.

Vann addressed best practices by EEAC-member businesses. Commissioner Barker expressed positive interest in “Phased Retirement,” a program which allows older employees to work a reduced schedule while receiving both salary and partial retirement benefits and permits companies to ease skilled workers out while training replacements. Vann remarked that the program “is popular both with workers who would like to scale back without leaving the workforce entirely and with employers who are concerned about the brain drain and want to keep experienced workers at least on a part-time basis.”

The second panel included two EEOC attorneys and three plaintiffs from recent age discrimination cases who described their experiences in trying to seek efficient justice in the courts. The plaintiffs appealed to the EEOC for help in improving age discrimination law.

The final panel, entitled “Pondering Pensions: Employee Benefits in the Kentucky Retirement Era,” presented testimony from Laurie McCann, an AARP senior attorney, and Eric Dreiband, a former EEOC General Counsel.  The panelists analyzed a number of Supreme Court age cases and the Older Workers Benefit Protection Act of 1990 (OWBPA).  McCann examined several cases decided after Kentucky Retirement Systems v. EEOC, 128 S. Ct. 2361 (2008), and concluded that the current case law framework for age discrimination is overly narrow and “severely limits the ADEA’s effectiveness to fight discrimination against older workers.”  Dreiband stated that, under section 9 of the ADEA, the Commission could respond to the Kentucky Retirement Systems case in a number of ways, including creating an administrative exemption, issuing regulations explaining the case, or providing subregulatory guidance.

The EEOC’s new technical assistance document answers employee questions regarding any “offer of a severance agreement in exchange for a waiver of [] actual or potential discrimination claims.”  Part II provides basic information concerning severance agreements. 

Part III explains when a waiver is a valid. This section provides factors courts will consider to determine whether a waiver of rights under Title VII, the ADA, or the EPA was “knowing and voluntary,” such as whether the waiver was written in clear and specific terms and whether the employee had enough time to read and consider the waiver. The document states that a waiver provision attempting to limit a terminated employee’s right to testify, assist, or participate in an EEOC investigation, hearing, or proceeding is unenforceable, and notes in a footnote that such a provision constitutes unlawful retaliation in violation of federal employment rights statutes. Part III notes that some courts require an employee to return severance pay or other consideration received for signing the waiver before bringing a claim under Title VII, the ADA, or the EPA.  However, employees cannot be similarly required to “tender back” before bringing a claim under the ADEA.   

Part IV addresses waivers of age discrimination claims and compliance with OWBPA. This section lists the seven statutory requirements for waivers of age discrimination claims, including that the waiver must: specifically refer to rights or claims arising under the ADEA, advise the employee to consult an attorney before signing, and give the employee seven days to revoke his or her signature. The Commission interprets the statutory requirement that the waiver be “written in a manner calculated to be understood” to mean that the waiver “must not have the effect of misleading, misinforming, or filing to inform participants and must present any advantages or disadvantages without either exaggerating the benefits or minimizing the limitations.” The statute also requires that a waiver provide the employee with at least 21 days to consider the offer, and the Commission notes that the 21-day period starts over if “material changes to the final offer are made.” 

Part IV notes that although an employer cannot avoid its duties under an ADEA waiver because an employee exercises his or her right to challenge the waiver’s validity, an employer may offset money paid for a waiver against a monetary award resulting from an employee’s successful challenge of the waiver. 

Part IV also details additional requirements for group layoffs of employees age 40 and over, including the employer’s obligation to inform employees who are being laid off of the “decisional unit” of employees considered for the termination program, eligibility factors for the program, time limits applicable to the program, and job titles and ages of all individuals who are eligible plus the ages of all individuals in the same job classifications or organizational unit who are not eligible for the termination program. The document also includes two appendices that provide a checklist for “What to Do When Your Employer Offers You a Severance Agreement” (Appendix A) and a model waiver (Appendix B).

EEOC Votes to Adopt Proposed Regulations Implementing ADA Amendments Act

On June 17, 2009, the Equal Employment Opportunity Commission held a public meeting and voted 2-1 to adopt proposed regulations implementing the Americans with Disabilities Act Amendments Act of 2008 (”the Act”).  The Act, which was signed into law by President Bush on September 25, 2008 and took effect January 1, 2009, generally lowers the threshold for establishing that an individual is disabled within the meaning of the statute.  The two Democrats, Acting Chairman Stuart Ishimaru and Acting Vice Chair Christine Griffin voted in favor, and the Republican, Commissioner Constance Barker, voted against the proposed regulations.

The Commission announced that it will submit the Notice of Proposed Rulemaking (NPRM) to other federal agencies and the OMB for review and coordination, and then, following that process, publish it in the Federal Register for notice and comment.

Vice Chair Griffin presided over the meeting and explained that the Commission, through its proposed regulations implementing the Act, seeks to reverse past court decisions which narrowly interpreted the ADA and limited the scope of the Act’s protections.

Peggy Mastroianni, Associate Legal Counsel, gave an overview of the work done to fashion the rule. Mastroianni emphasized two driving components in the development of the rule: that the definition of disability should “be construed in favor of broad coverage” and “should not demand extensive analysis.”

Christopher J. Kuczynski, Assistant Legal Counsel-ADA Policy Division, summarized the proposed changes to EEOC’s existing regulations. The proposed changes attempt to broaden the existing list of examples to provide more helpful guidance to “individuals protected by the law, employers required to comply with it, and courts called on to resolve disputes.” Kuczynski also noted the Commission believed greater specificity in the regulations would increase court deference to the regulations.  The proposed changes include additional examples to the list of “major life activities,” (adding “reaching,” “sitting” and “interacting with others”), as well as additions to the list of “major bodily functions” (adding functions of the “hemic,” “lymphatic” and “musculoskeletal” systems). 

Kuczynski also addressed proposed changes to the language requiring that a disability “substantially limit” a major life activity. The proposed changes lower the current standards for coverage through five rules of construction. Under these rules, (1) courts should focus on determining whether discrimination actually occurred, rather than on proving the existence of a disability; (2) an individual need not demonstrate limitedness in “activities of central importance to daily life”; (3) an impairment that substantially limits one life activity need not limit others to be “substantially limiting”; (4) the comparison of an individual’s limits to those of most people in the general population may often be made through common-sense analogy, without citing to scientific analysis; and (5) impairments lasting less than six months may still be considered “substantially limiting.”

Also included within the “substantially limits” standard are episodic disabilities or disabilities in remission, so long as those disabilities, when active, would “substantially limit” major life activities. 

The NPRM identifies a number of impairments that will “consistently meet the definition of ‘disability’ because they “will obviously be substantially limiting.” This list includes some obvious choices, like blindness, deafness, and missing limbs, but also includes autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia. Kuczynski stressed that the express inclusion of certain conditions should never undermine the “individualized assessment that is the hallmark” of this process. Moreover, the NPRM also identifies a number of impairments that may be substantially limiting depending on individual circumstances, such as asthma, high blood pressure, carpal tunnel syndrome, and panic disorder.  

Griffin touted the proposed changes as a good tool for moving back toward Congress’ intention of eliminating discrimination. She added that, following the implementation of the new rules, “people with disabilities can hopefully look forward to spending most of their time in the workplace, and not in a courthouse.” Acting Chairman Ishimaru agreed, stating that the implementation of the new rules will hopefully shift away from the further narrowing of the definitions critical to the Act.

Commissioner Barker dissented, because she viewed the proposed changes as exceeding EEOC’s authority under the Act. While she agreed the ADA needed amending, she believed the existing ADA Amendments Act embodied the extent of the changes Congress intended to make, and that as non-legislators, EEOC is “confined to making those changes…that correctly reflect Congressional intent,” and that they do not have the power to insert or remove concepts of their own volition without authority. She further asserted that Congress had developed the Act after much bipartisan negotiation and compromise, arriving at a solution that represented the “careful balancing of interests.” Commissioner Barker said Congress did not intend “to throw out the ADA and start afresh.”