Picking the New Secretary of Labor: A Backgrounder on Victoria Lipnic

This post is part of a series on the candidates we understand to be under consideration for Secretary of Labor.

Victoria Lipnic, now in her second term as an EEOC Commissioner, was one of the 15 recess appointments President Obama made in the spring of 2010. Her reappointment to the Commission was unanimously confirmed by the Senate in 2015. A frequent member of the Commission’s two-person Republican minority, Lipnic served as Assistant Secretary of Labor for Employment Standards in the Bush Administration from 2002 to 2009. During that time she oversaw the Wage and Hour Division’s 2004 overtime regulations, as well as teams managing issues such as workers’ compensation, compliance, and revising FMLA regulations. In addition to her work with the Department of Labor, Lipnic previously served as Workforce Policy Counsel to the Republican members of the Committee on Education and the Workforce in the House of Representatives. Before her work for Congress, Lipnic acted as in-house counsel for labor and employment matters to the U.S. Postal Service and served as a special assistant in the Department of Commerce under Malcolm Baldrige.

EEOC OPINION HIGHLIGHTS

TITLE VII

Lipnic dissented in the EEOC’s decision in Baldwin v. Foxx, which held that discrimination based on sexual orientation is necessarily a form of sex discrimination, and as such violates Title VII. While Lipnic did join the unanimous opinion in Macy v. Holder, holding that intentional discrimination due to a person’s transgender identity falls under Title VII’s prohibition on sex discrimination, she dissented in Lusardi v. Dep’t of the Army, which held that prohibiting a transgender person from using the restroom of his or her identified gender also constitutes sex discrimination.

Lipnic did separate from the other Republican member to support the 2012 guidance on criminal background checks, which discouraged blanket exclusions of convicted individuals and recommended individualized assessments of whether an employer’s criminal conduct exclusion is job-related and consistent with business necessity. Lipnic did voice some hesitancy with the guidance, noting that there may be instances where an individualized assessment may not be necessary under Title VII (she gave the example of a convicted child molester applying to work at a day care).

PREGNANCY/EQUAL PAY/SEXUAL HARASSMENT

Lipnic dissented in the controversial EEOC pregnancy guidance of 2014, to which the Supreme Court, in Young v. UPS, declined to give deference. Similar to Lipnic’s criticisms, the Court took issue with the consistency and thoroughness of the Guidance, and with the fact that the EEOC issued it after the Court had already granted certiorari in UPS. Lipnic also voted against the EEOC’s revised proposal to collect pay data through the Employer Information Report or EEO-1. Lipnic explained in a speech that, as a policy matter, she felt “it was past its prime and should be relegated to the heap of bad policy ideas once and for all.” Lipnic acknowledged there is an unexplained gender wage gap, but expressed that the focus should not be on collecting pay data from employers, but on addressing what have been identified as the predominant reasons for the gap.

Lipnic also served as a co-chair of the EEOC’s Select Task Force on the Study of Harassment in the Workplace which found that corporate training has had a limited effect on preventing workplace harassment. The Task Force’s report advocated a number of measures including “workplace civility training” and “bystander intervention.”

OTHER

Lipnic voted against a regulation clarifying the parameters of the “reasonable factors other than age” defense under the Age Discrimination in Employment Act (ADEA), an attempt to make it easier for older workers to pursue disparate impact claims under the ADEA.