On April 29, 2020 the U.S. Equal Employment Opportunity Commission (EEOC) Commissioners held its first remote Commission Meeting, and considered three policy items.
First, the Commissioners voted 2-1 in favor of issuing a formal opinion letter explaining how EEOC-enforced laws do not prevent employers from using the Work Opportunity Tax Credit (WOTC). The goal of the WOTC is to encourage employers to hire and train people who are experiencing severe difficulties that are often linked to unemployment. To qualify for the WOTC employers must obtain official confirmation of a job applicant’s WOTC status before an offer of employment is made. A formal opinion letter would provide a defense under Title VII and the ADEA, and persuasive authority under the ADA, because it is a written interpretation or opinion of the Commission.
Second, the Commissioners voted 2-1 in favor of rescinding Section 604 of the EEOC’s Compliance Manual, Theories of Discrimination. Section 604 EEOC Compliance Manual contains statements of the law that are no longer accurate. Subsequent EEOC guidance provides more detailed and up-to-date discussions of the same principles. These documents include, but are not limited to, the Compliance Manual Section on Race Discrimination (2006), Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities (2007), Compliance Manual Section on Religious Discrimination (2008), Enforcement Guidance on Pregnancy Discrimination and Related Issues (2015), and Enforcement Guidance on National Origin Discrimination (2016).
The Commissioners also voted 2-1 in favor of rescinding Appendix C, Section 604, Polygraph Examinations. The Commissioners voted to rescind the document because it is rarely used.
Practice Tip: The EEOC Office of Legal Counsel prepares informal discussion letters in response to inquiries from members of the public and requests for public comment from federal agencies and departments. The Informal Discussion Letters can be used as guidance to employers, but do not constitute official opinions of the EEOC and cannot be relied upon as a defense in court.