Employment & Labor Insider

The U.S. Equal Employment Opportunity Commission announced this week that it will begin issuing opinion letters in response to requests from the public.

Eligible topics are Title VII and the Age Discrimination in Employment Act. 

The Americans with Disabilities Act appears not to be an eligible topic, presumably because the EEOC doesn't have the capacity to be flooded with questions about COVID-19 and whether employers can legally mandate that employees get the vaccine when it is available. (Vaccine guidance is reportedly on the way.)

As employers know, for many years the Wage and Hour Division of the U.S. Department of Labor has issued opinion letters on the Fair Labor Standards Act and the Family and Medical Leave Act. Wage and Hour opinion letters were discontinued during the Obama Administration, but they were revived after President Trump took office.

I think it's great that the EEOC will be issuing opinion letters, and I hope they'll continue and expand them to the other laws that the EEOC enforces -- not only the ADA, but also the Equal Pay Act and the Genetic Information Nondiscrimination Act. The more preventive guidance employers can receive, the better.

But I can't resist having a little fun with what I expect will be showing up in the EEOC's mailbox. (Because the EEOC has already issued two opinion letters, here and here, I'm starting the numbering at "003.") 

Please note that none of the following are real. I made them up.

Dear EEOC:

Our CEO wants to fire all of our employees when they reach the age of 55. Can he do that?

Commission Op. Ltr. 2020-003

Dear [redacted]: 

No.

Dear EEOC:

We had a Black employee complain recently that he was being racially harassed. The alleged harassers are three or four white guys who are into rap music and use the "N" word freely. They mean it as a compliment. Do we need to do anything about this?

Commission Op. Ltr. 2020-004

Dear [redacted]:

Yes.

Dear EEOC:

Our company has had good experience hiring workers from Canada. They are so much harder working than Americans, and have better attitudes. And they never sue! Can we institute a "Canadian only" hiring policy?

Commission Op. Ltr. 2020-005

Dear [redacted]:

No.

Dear EEOC:

We are hiring for a receptionist. We have an applicant who is Muslim and wears a hijab. Our CFO thinks she will make people feel uncomfortable and doesn't want to hire her, even though she is much more qualified than anyone else who has applied. I told the CFO that we could be liable for religious discrimination if we don't hire her. Am I right?

Commission Op. Ltr. 2020-006

Dear [redacted]:

Is the Pope Catholic?

Dear EEOC:

Can I require my Mexican employees to speak English when they're on break or at lunch? It drives me crazy not to know what they're talking about.

Commission Op. Ltr. 2020-007

Dear [redacted]:

No. To your second point, Tough. Take a Spanish class.

Dear EEOC:

I am an executive who is very attracted to a woman who reported to me (she's on medical leave now), but she doesn't seem to return my feelings. I recently asked her out, and she said no. In an effort to persuade her, I told her that I could make things nice for her at work, and I used the expression, "You scratch my back, and I'll scratch yours." Was that wrong?

Commission Op. Ltr. 2020-008

Dear [redacted]:

The agency's determination that your company is strictly liable for quid pro quo sexual harassment is in the EEOC's web portal awaiting your review. Please remit $300,000.