Remarks from EEOC Commissioner Constance S. Barker at ACI Conference in NYC

I have just listened to a keynote address from Commissioner Constance Barker of the EEOC.  Here are a few takeaways from Ms. Barker's remarks:

• The EEOC will issue final rules "very soon" on the ADA and wellness plans as well as GINA.

• While the EEOC takes the position that its criminal background checks apply to employers irrespective of state law (even those requiring background checks for certain industries), as a practical matter the EEOC will not file suits against companies following background check laws such as nursing homes or day care centers.  The thought process behind the EEOC position regarding state law is a fear that some industries would lobby state legislatures for carve outs to end-run the background check requirement.

• The EEOC continues to crack down on severance and release agreements that it considers overly broad.  Title VII waivers should now be clearly set out and possibly put in bold print.

• The EEOC has not taken a formal position on releases that allow an employee or former employee to file administrative charges but require the employee to not obtain any monetary recovery as a result.

• The EEOC hiring freeze has been lifted and the EEOC recently hired 350 new employees--mostly intake and investigators to tackle the 75,000 agency's charge backlog.

• 27 percent of the EEOC's current litigation docket relates to "systemic" claims; i.e. cases where companies are accused of widespread practices that are discriminatory.

• The EEOC now utilizes 18 "lead systemic investigators" at its regional locations to oversee systemic investigations and will seek to aggressively pursue systemic cases.

• The bill currently pending before the Senate to fund the EEOC would require the EEOC to follow regulatory notice and comment rules where two commissioners request it.  This would mean that the EEOC would effectively be unable to simply issue "guidance" as it has done recently since the two Republican Commissioners could request a comment period just as when the EEOC issues regulations.