President Trump appointed Commissioner Victoria A. Lipnic as acting Chair of the EEOC. Ms. Lipnic began serving as an EEOC Commissioner in 2010 after being nominated to serve by President Barack Obama. Mr. Obama again nominated her to serve a second term ending on July 1, 2020. As explained below, this is good news for employers. But it is probably a “best case scenario” for employees too in light of Trump’s other appointments.
Trump has been criticized for the lack of relevant experience in his cabinet appointments (did you catch the testimony from his nominee for Secretary of Education, Betsy DeVos – brutal). But the same cannot be said about Ms. Lipnic.
Ms. Lipnic’s Prior Employment Law Experience
Ms. Lipnic brings a wealth of relevant employment law experience. She has worked at the Department of Labor, serving as the Workforce Policy Counsel to the Republican Majority members of the Committee on Education and the Workforce in the U.S. House of Representatives, and she was an attorney for labor and employment matters for the U.S. Postal Service.
Highlights of Ms. Lipnic’s Prior EEOC Work
While Ms. Lipnic’s appointment generally bodes well for employers, her prior work suggests she will not be dogmatic when it comes to Republican/employer-friendly policies. Here are a few notable highlights involving Ms. Lipnic:The
- The EEOC’ held in Baldwin v. Foxx decision that discrimination based on sexual orientation is necessarily a form of sex discrimination and, therefore, violates Title VII. This EEOC decision was significant on two fronts: It marked the first time that the EEOC issued a ruling stating that claims for sexual orientation discrimination are covered by Title VII as a form of sex discrimination and Ms. Lipnic dissented in the decision. Since the time of the EEOC’s decision, the scope of Title VII’s sex discrimination provision, including its application to gay, lesbian, and transgender employees, continues to be litigated in federal courts. And such courts have shown a willingness to not follow the EEOC’s lead. See Hively v. Ivy Tech Cmty. Coll. (7th Cir., 2016) 830 F.3d 698 (The U.S. Court of Appeals for the Seventh Circuit decided against the EEOC’s Foxx decision and held Title VII did not protect against discrimination based on sexual orientation).
- Ms. Lipnic departed from her other Republican member in support the EEOC’s 2012 guidance on criminal background checks. This guidance recommended against blanket exclusions of convicted individuals in favor of individualized assessments of whether an employer’s criminal conduct exclusion is job-related and consistent with business necessity.
- In 2014, Ms. Lipnic also dissented in the EEOC’s pregnancy guidance. Notably, this guidance was ultimately rejected by the Supreme Court in Young v. UPS.
Ms. Lipnic replaces Jenny R. Yang, who was named Chair of the U.S. Equal Employment Opportunity Commission by President Barack Obama in September 2014. Ms. Lipnic will also be taking over an agency that saw its longest-serving general counsel, P. David Lopez, step down this past December. Under both Ms. Yang and Mr. Lopez, the EEOC aggressively moved towards protecting gay rights and the agency secured the largest damages award in the EEOC’s history. Such damages arose out of large-scale discrimination against individuals with intellectual disabilities, religious discrimination claims.
Commissioner Lipnic will most certainly steer the EEOC away from the aggressive, employee-friendly initiatives taken by her predecessors. However, unlike other Trump appointees, she is not someone who can be considered “hostile” towards the purpose of the agency she will be responsible for managing or lacking expertise.
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