EEOC Commissioner Urges Industry-Specific COVID Guidance

By Vin Gurrieri
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Law360 (May 6, 2021, 7:09 PM EDT) -- EEOC Commissioner Keith Sonderling said Thursday that the agency should consider issuing guidance that addresses COVID-19 issues that are unique to specific industries, saying it would help employers make decisions without wondering if their actions are lawful.  

Sonderling's comments came during a wide-ranging speech he gave to attendees at the second day of a virtual summit held by the Institute for Workplace Equality, a national employer association that helps contractors understand and meet their equal employment opportunity compliance obligations.

Among the topics he touched upon, Sonderling highlighted a meeting the U.S. Equal Employment Opportunity Commission held last week in which the five commissioners heard testimony from numerous experts about the impact COVID-19 has had on American workplaces and what the agency can do to help workers and businesses navigate the myriad legal issues the pandemic has created.

Sonderling said Thursday that the pandemic has raised numerous "challenging questions" about how employers can both limit infections from occurring at work while also protecting employees' rights under Title VII of the Civil Rights Act and other federal anti-discrimination statutes, and that the public "will continue to look to the commission for COVID-19 related guidance and answers."

While virus-related guidance the agency has previously issued "has been broadly applicable," Sonderling said it would be beneficial to all involved if the EEOC addresses virus-related issues that affect particular industrial sectors in a way that gives those businesses practical direction.  

"I stress that the commission must issue new, common-sense guidance on return-to-work and other timely issues," Sonderling said. "Moving forward, the EEOC must begin to issue industry-specific guidance to address the array of issues that are becoming prevalent as the pandemic enters its final stage."

Drawing on his past work as a management-side attorney, Sonderling said that such guidance is "the type of service the public expects from the government" and not "partial answers" that leave employers to make key decisions on their own and "face significant liability if they guessed wrong."

"It's my belief that businesses must know they will not be penalized by the federal government or through litigation for taking bold steps to help their workers thrive amid COVID-19 and ultimately return to the workplace," Sonderling told the virtual audience.

The EEOC commissioner noted that during last week's commission meeting he highlighted certain topics he believes the agency should start issuing guidance about, including the types of incentives employers can offer workers to get vaccinated and how businesses should deal with workers who object to mandatory vaccination requirements, among other pressing issues. 

Sonderling, who was confirmed to the commission last year after a stint at the U.S. Department of Labor, also discussed a litany of other recent EEOC developments during Thursday's speech. He reiterated his support for a regulation the commission finalized in the waning days of the Trump administration revamping the agency's pre-suit conciliation program in a way that he believes will pave the way for more charges of workplace discrimination to be settled before they land in court.

The regulations set baseline requirements for the type of information the EEOC must make available to employers that choose to take part in conciliation — including details about the facts of a particular case that led the agency to conclude there is reasonable cause to believe unlawful bias, harassment or retaliation occurred.  Going forward, the agency must also turn over certain information about its legal rationale, among other changes to the process.

Inviting employers to engage in conciliation is a prerequisite to an EEOC suit under Title VII of the Civil Rights Act and other laws the agency enforces. The rule took effect in February shortly after a three-commissioner majority that included Sonderling voted to finalize the rule.

But Democrats in Congress have unveiled resolutions to rescind the rule under the Congressional Review Act, which gives lawmakers the ability to overturn executive branch regulations within 60 legislative days of when they are issued by passing a disapproval resolution with a majority vote in each chamber and getting the president's signature. If a rule is wiped out, the CRA also contains a provision that blocks future administrations from enacting similar regulations without congressional authorization.

"I passionately believe the rule is a catalyst for better communications between the commission and the employer, thereby helping the parties to narrow the issues, manage expectations and have a meeting of the minds without litigation," Sonderling said Thursday. "A successful CRA negates this vital rule and makes it more likely that conciliations will be less successful due to a lack of critical information not being exchanged. Encumbering the conciliation process in this way is a loss for employees, employers and the commission and the public."

--Editing by Haylee Pearl.

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