Reports of the demise of the Equal Employment Opportunity Commission’s enforcement of traditional discrimination claims may have been exaggerated. Last week, the commission announced settlement of claims made against Sinclair Broadcast Group alleging race discrimination involving pay disparities with a Black female employee. In addition to paying $100,000, the employer agreed to adopt policies stating it does not prohibit employees from discussing or disclosing their pay.
In the past, employers frequently enforced policies prohibiting workers from discussing or comparing their salaries. In recent years, both the EEOC and National Labor Relations Board have taken the position that federal labor laws prohibit policies that restrict employees' ability to compare their pay or disclose that information to third parties. The NLRB stated that such information is a form of protected concerted activity, while the EEOC concluded that employees who believe that they are the subjects of pay discrimination cannot be retaliated against for asking coworkers about their compensation.
While both agencies' enforcement priorities have shifted with the new administration, the EEOC shows few signs of changing its position with regard to pay disclosure policies. Employers that have retained old prohibitions against such disclosures should revisit and adjust their policies to avoid federal labor law allegations.
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