Short window seen for EEOC policy changes

With Janet Dhillon being sworn in as its new chair last week, the U.S. Equal Employment Opportunity Commission has a quorum for the first time since January that permits it to issue policy decisions, but it may not have one for long.

This is because the term of Commissioner Charlotte A. Burrows, the remaining Democrat on the commission, is set to expire July 1, and President Donald Trump has not nominated candidates to fill the five-member commission’s existing two vacancies.

President Trump had nominated Daniel Gade to one of the vacant commission spots, but he withdrew his nomination in December 2018 after the Senate failed to vote on it for more than a year.

Meanwhile, the Senate also has not voted on President Trump’s nomination of Sharon Fast Gustafson as EEOC general counsel. Several civil rights organizations expressed their “strong concerns” regarding her nomination following her testimony during a Senate committee confirmation hearing, stating in a letter they were troubled by her “evasive answers” regarding LGBT workers’ rights.

Ms. Dhillon takes over as chair from acting chair Victoria A. Lipnic, a fellow Republican. Ms. Dhillon “brings real talents to the position,” said Ricki E. Roer, a partner with Wilson Elser Moskowitz Edelman & Dicker LLP in New York.

She cited Ms. Dhillon’s background at Skadden, Arps, Slate, Meagher & Flom LLP and her positions as executive vice president, general counsel and corporate secretary of Burlington, New Jersey-based Burlington Stores Inc. and of Plano, Texas-based J.C. Penney Co.

Experts expect Ms. Dhillon will follow a pro-business agenda when she has the opportunity to do so.

“She appears to be much more business-friendly than one would see for an EEOC chair under a Democratic administration, for example, and probably more business-friendly than her predecessor,” said Richard D. Tuschman of Richard D. Tuschman PA in Plantation, Florida.

But David Gevertz, managing director of advocacy at Baker, Donelson, Bearman, Caldwell & Berkowitz P.C. in Atlanta, said, “I don’t expect a lot different from Ms. Dhillon as opposed to the acting commissioner whom she’s filing in for. She seems to be steeped in the issues” and “will undoubtedly come at it from a friendly, as opposed to an activist, perspective.”

The EEOC, for now, has the required quorum of three commissioners. “It means for the first time in a long time the business of the EEOC can move forward because there’s a quorum, and things like setting directions, initiating enforcement guidance memorandums and taking policy positions can be done,” whereas with just two commissioners it would have been “awkward and inappropriate” to do so, said Gerald A. Maatman, a partner with Seyfarth Shaw LLP in Chicago.

With the quorum expected to last a relatively short period of time, “I would expect that employers will see some significant dispatching of business in the next 30 to 60 days,” he said.

But the lack of a quorum is not “going to prevent (Ms. Dhillon) from doing what she wants as much as it would hamper someone who’s coming in with a strong agenda to overturn EEOC precedent,” Mr. Gevertz said.

“I don’t think we’re going to get a full quorum in place until the next election,” he said. The priority is on judicial nominations and not on agencies that President Trump’s administration “doesn’t desire to see fully empowered in the first place.”

One of the issues the EEOC is expected to deal with is EEO-1 pay data. In 2017, the Trump administration announced a “review and immediate stay” of the EEO-1 pay data collection rule, which was an Obama-era rule that called for expanded data collection, requiring companies with 100 or more employees to confidentially report to the EEOC information about what they pay their employees by job category, sex, race and ethnicity.

In April, the U.S. District Court for the District of Columbia ruled in National Women’s Law Center et al. v. Office of Management and Budget et. al. that the EEOC should set a Sept. 30 deadline for employers to submit EEO-1 data on employees’ pay and hours worked in 2017 and 2018.

The ruling was appealed on May 3 to the U.S. Court of Appeals for the District of Columbia by Ms. Lipnic, as then-acting EEOC chair, the OMB and Office of Information and Regulatory Affairs acting commissioner.

Ms. Dhillon has indicated the collection is “problematic” and Ms. Lipnic has voted against it, said Robin E. Shea, a partner with Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina.

Another issue for the commission is the dynamics between the Washington headquarters and regional offices, and whether there will be an expanded amount of control by headquarters, Mr. Maatman said.

“There are some who believe the field offices have done things” that are somewhat incongruous with headquarters and follow their own agenda, he said.

Meanwhile, the EEOC is in conflict with the Department of Justice over the issue of whether Title VII of the civil Rights Act of 1964 covers sexual orientation, with the Justice Department stating in its amicus brief to the 2nd U.S. Circuit Court of Appeals in New York in Melissa Zarda et al. v. Altitude Express it does not, and the EEOC asserting it does. 

The case involves a gay skydiver who sued his former employer alleging he was fired from his job as a skydiving instructor because of his sexual orientation.

The U.S. Supreme Court has agreed to consider three cases, including Zarda, on the issue of whether sexual orientation and gender identity discrimination are protected under Title VII.

“Everyone’s going to hold their breath” until the Supreme Court rules in these cases, said Mr. Gevertz. “I don’t see anyone doing anything until the court issues a ruling” even if Ms. Dhillon had a full quorum, he said.