The Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) released technical assistance documents concerning unlawful workplace DEI discrimination. A House of Representatives Subcommittee held a hearing on the future of the Fair Labor Standards Act (FLSA). Several nominations and confirmations at the DOL and EEOC have occurred. March 25th marked Equal Pay Day.
DEI Technical Assistance Documents Issued – The Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) released two technical assistance documents designed to educate the public about unlawful diversity, equity, and inclusion (DEI) discrimination in the workplace. The EEOC and DOJ released a joint document titled "What to Do If You Experience Discrimination Related to DEI at Work” and the EEOC issued separate, more detailed guidance titled “What You Should Know About DEI-Related Discrimination at Work.”
The EEOC and DOJ acknowledged that “DEI is a broad term that is not defined in Title VII of the Civil Rights Act of 1964.” However, they believe that DEI policies, programs, or practices may be unlawful “if they involve an employer…taking an employment action motivated in whole or in part by an employee’s race, sex, or protected traits.” The EEOC noted that Title VII prohibits DEI related discrimination based on disparate treatment in hiring, terminating, promoting/demoting, compensating including benefits, accessing or excluding from training, mentoring, networking, internships, and work assignments.
Examples of possible DEI related discrimination that was cited include: employee clubs or groups such as Employee Resource Groups, Business Resource Groups or other employee affinity groups that are limited to certain protected groups or separating workers into groups based on protected factors when administering training or workplace programming. Additionally, harassment that creates a hostile work environment could be alleged if training programs can be shown to be discriminatory.
FLSA Hearings Held in the House – The Subcommittee on Workforce Protections of the House Committee on Education and the Workforce held a hearing titled “The Future of Wage Laws: Assessing the FLSA’s Effectiveness, Challenges and Opportunities.” Subcommittee Chairman Ryan Mackenzie (R-PA) stated “It is long overdue for Congress to update this 87-year old law so workers and businesses have the best opportunities to succeed.” Among the issues he mentioned for consideration were evaluating the methodology for calculating the overtime regular rate, the definition of compensable time that can result in denying voluntary participation in professional development opportunities to nonexempt workers, and employee and independent contractor status.
Tammy McCutchen, former Administrator of the DOL’s Wage and Hour Division declared that the FLSA “is neither clear nor simple; and it has become grossly outdated in the 87 years since it was signed into law.” She recommended clarifying the definition of employers and employees to distinguish employees from independent contractors. She believes that the definition of work should be amended, as well as the way in which the regular rate of pay is determined for overtime compensation by excluding all non-monetary benefits that are provided to employees. She also suggested that the overtime exemptions be updated. Finally, she advocates for creating affirmative defenses for employers, allowing private settlement and waivers of FLSA claims that would provide incentives for employers to audit their FLSA compliance and correct mistakes.
Jonathan Wolfson, Chief Legal Officer and Policy Director of the Cicero Institute called on Congress to “act to bring the FLSA into the 21st century, promoting an employment law system that benefits workers, businesses, and consumers alike while helping our economy continue to grow.” His testimony focused on several points including: 1) the FLSA is vague and lacking in definitions of key terminology that creates confusion for businesses, 2) the FLSA often limits the flexibility that employees want and employers can offer in terms of pay and benefits, and 3) the modern economy is very different from the economy when the FLSA was enacted and the law needs to be updated to reflect this.
Confirmations/Appointments & Nominations Update – There have been confirmations and appointments at the Department of Labor (DOL) and a nomination to the Equal Employment Opportunity Commission (EEOC).
Lori Chavez-DeRemer was confirmed by the Senate as the Secretary of Labor. She was most recently a member of Congress representing Oregon’s 5th congressional district. She pledged to “work with business and labor to support good-paying jobs, grow our economy, and ensure every American can enjoy a comfortable retirement.”
Keith E. Sonderling has been confirmed by the Senate as the Deputy Secretary of Labor. He previously served at DOL as the Acting and Deputy Administrator of the Wage and Hour Division. He also was an Equal Employment Opportunity Commission (EEOC) commissioner from 2020-2024.
Andrew Rogers was nominated to be the Wage-Hour Administrator. He is currently the acting general counsel at the EEOC. He worked previously as a senior adviser in the Wage-Hour Division. His nomination requires Senate confirmation.
Catherine Eschbach has been appointed as director of the Office of Federal Contract Compliance (OFCCP). Prior to her appointment, she worked for six years at the law firm of Morgan, Lewis & Bockius LLP. Amanda Wood Laihow will serve as the deputy assistant secretary for the U.S. Occupational Safety and Health Administration. She was previously a commissioner to the U.S. Occupational Safety and Health Review Commission and the director of labor and employment policy for the National Association of Manufacturers.
President Trump nominated Acting Chair Andrea Lucas to another five-year term as a member of the Equal Employment Opportunity Commission (EEOC). She has served as a member of the EEOC since 2020. She stated, “I am honored to be nominated by President Trump to serve a second term at the EEOC, our nation’s premier civil rights agency enforcing federal employment antidiscrimination laws.” Her nomination needs to be approved by the Senate.
Equal Pay Day – March 25 marked Equal Pay Day, which was the date calculated to be the point where the earnings of women equal what men earned in the previous year. Women working full-time were paid an estimated 83 cents for every dollar paid to men.
Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.