The second Trump administration has doubled down on its zealous efforts to influence and remake workplaces in the United States. The past several weeks have seen continued efforts in this vein:
· EEOC rescinds criminal records guidelines for the workplace
The Equal Employment Opportunity Commission (EEOC) voted to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act. The Guidance outlined how employers’ consideration of arrest and conviction records could violate Title VII, particularly where background checks and policies disproportionately affected applicants based on race or national origin. The guidance emphasized that by utilizing blanket exclusions based on criminal history, employers’ hiring practices could disparately impact specific races or national origins, even where employers applied the same screening criteria to all applicants. The EEOC had recommended that employers evaluate three factors when considering criminal convictions: (1) the nature and gravity of the offense; (2) the time elapsed since the offense or completion of the sentence; and (3) the nature of the position sought. The EEOC also had encouraged employers to utilize individualized assessments to allow applicants to provide additional information regarding the offense before making a decision.
The rescission, made Oct. 28 and announced Oct. 29, took effect immediately and represents the Trump administration’s significant shift in the agency’s approach to employment discrimination enforcement. As with the EEOC’s other recent seismic shifts, this recission does not relieve an employer from complying with Title VII or other laws but does reflect the EEOC’s broader shift away from enforcement of disparate impact. Therefore, employers should not interpret the EEOC’s recission as eliminating legal risk from considering criminal history in hiring and other employment decisions. Instead, employers should continue to evaluate their practices for considering criminal background and determine whether they are compliant with federal, state and local requirements, and consult an employment attorney if there are questions related to specific practices.
· EEOC said to be planning to roll back pregnancy protections in the workplace
In a bombshell report, the New York Times reported that the EEOC has been working to roll back the scope and protections for women of the Pregnant Workers Fairness Act (PWFA) related to pregnancy and reproductive health. The PWFA requires accommodations for pregnant workers, such as bathroom and water breaks and reprieves from heavy lifting or time off for prenatal appointments. PWFA also protects women who are trying to get pregnant; who are engaging in reproductive healthcare; or are dealing with pregnancy loss. EEOC Chairperson Andrea Lucas, shortly after attaining that position, stated that the PWFA “fundamentally errs in conflating pregnancy and childbirth accommodation with accommodation of the female sex, that is, female biology and reproduction.” The EEOC’s reported efforts to eliminate some protections are in line with that view. The EEOC is expected to roll back protections aimed at eliminating protections for women who are not actively pregnant. For example, fertility treatments and efforts at becoming pregnant or removing medical obstacles to becoming pregnant are expected to be removed from the EEOC’s protections as are medical care related to abortion. The EEOC is expected to publish its plans to narrow the protections before the end of the year.
