Employers know that a knock on the door from the U.S. Equal Employment Opportunity Commission means that the company’s labor practices will be held up against the letter of existing law. But is the agency moving beyond law enforcement and into murkier lawmaking waters?
That question arose when Gerald Maatman Jr., a partner at Seyfarth Shaw, attended and spoke at the recent sixth annual forum on “Defending Employment Discrimination Litigation,” hosted by the American Conference Institute in New York. In Maatman’s most recent post for Seyfarth’s Workplace Class Action blog, he discusses the topic by way of the event’s keynote address by Constance Barker, one of the EEOC’s five commissioners.
The main issue brought up by Barker was a controversy in the EEOC’s issuance of new enforcement guidance on the Pregnancy Discrimination Act. Barker made public statements questioning the EEOC’s action, arguing that in adopting the new guidance, the agency sought to legislate changes to, rather than interpret, Title VII.
“In broader terms, this squarely raises the issue of the proper role and responsibility of the EEOC,” Maatman wrote. “Should it enforce the law or expand the law to maximize the reach and public policies within employment discrimination prohibitions?”
Though the role of the EEOC is to enforce the law as written, critics of the EEOC believe that the commission should leave policy interpretations about the expansion of the law to Congress. Maatman noted that Barker told the forum that she thinks “the role of the EEOC is not to engage in ‘social engineering.’ Instead, the role of the EEOC is to enforce the law as written, and leave policy decisions about the expansion of the law to Congress.”