The EEOC Is Back In Business, At The Urging Of Business

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Equal Employment Opportunity Commission EEOC on a desk.

Getty

Through a curious chain of events, the panel that oversees the U.S. Equal Employment Opportunity Commission (EEOC) is back in business after five-months of downtime.

The EEOC is the agency charged by the U.S. Congress with enforcing our nation’s civil rights law. It has become increasingly important to workers, as unions decline and technology and globalism transform the American workplace.

But there was barely a peep when the EEOC was rendered ineffectual on January 3, 2019.

The five-member commission was whittled down to just two members after President Donald J. Trump declined to reappoint commissioner Chai Feldblum, a Democrat and the first openly lesbian EEOC commissioner. The EEOC could not assemble a quorum to enact new rules and regulations to enforce U.S. civil rights law.

That changed on May 8 when the U.S. Senate voted 50-44 to appoint Trump nominee Janet R. Dhillon, a corporate lawyer from Pennsylvania, as the newest EEOC commissioner. Senate Republicans then confirmed Dhillon, a Republican, to be the 16th chair of the EEOC.

Trump nominated Dhillon in 2017 but her nomination had languished for almost two years. So why was it suddenly approved?

The  U.S. Chamber of Commerce spearheaded a letter from several industry groups to  Senate Majority Leader Mitch McConnell (R-Ky.) last month urging him to “use all means at your disposal” to get Dhillon confirmed.

The Chamber, a former critic of the EEOC, opposes an Obama-era plan to encourage equal pay for women that requires employers with 100 or more employers to provide the EEOC with pay information broken down by job category, sex, race and ethnicity. Trump’s Office of Management and Budget (OMB) halted implementation of the plan in 2017, prompting a lawsuit by the National Women’s Law Center and the Labor Counsel for Latin American Advancement. Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia revived the plan last month, calling OMB’s stay of its implementation illegal, arbitrary and capricious.

Employers must turn over 2017 and 2018 pay data to the EEOC by Sept. 30.

In the letter to McConnell, the Chamber states:

“The inability of the Agency to act on this matter now threatens to impose millions of dollars in regulatory compliance costs on employers.”

It appears the Chamber expects Dhillon to do what the federal court would not and stay or diminish the reporting requirement. With Dhillon’s appointment, there is now a Republican majority on the EEOC.

In remarks accompanying the vote on Dhillon’s nomination, the Democratic Minority Leader  of the Senate, Chuck Schumer (D-N.Y.) said only:

“This move to restore a quorum by confirming a Republican nominee, while refusing to consider Democratic nominees – which had been the Senate’s tradition to always do these nominees in a bipartisan way, one Democrat and one Republican together – is going to imperil equal pay rules and protections for LGBTQ workers.”

Two of  the five seats on the commission remain vacant.

The other commission members are Republican Victoria A. Lipnic, who served as acting commissioner and whose term expires in 2020, and Democrat Charlotte Burrows, an African American whose term expires on July 1.  Dhillon’s five-year appointment ends July 1, 2022.

Watch Dog or Lap Dog?

Dhillon has always represented employers, not workers. Will she be a vigilant watchdog on behalf of aggrieved workers or a lap dog in the service of big business?

In recent years, the EEOC has shifted away from the prosecution of discriminatory employers to a more business friendly agenda of educational activities and free alternative dispute resolution services. It is likely that Dhillon will accelerate that shift.

In a press release commemorating her appointment, Dhillon was less than revealing:

“In the more than 50 years since the EEOC was founded, the country has made great strides toward achieving the goal of equal opportunity in the workplace … Yet, unfortunately, the goal of a nondiscriminatory workplace has not been fully achieved … This discrimination is illegal, economically counterproductive, and corrosive to the very fabric of our society.”

Of course,  it should come as no surprise if Dhillon, who is Trump’s nominee, follows Trump playbook.

A primary focus of the EEOC in recent years has been LGBTQ issues. At her confirmation hearing, Dhillon said she is personally opposed to workplace discrimination based on sexual orientation and gender identity but declined to support the EEOC’s position that Title VII of the Civil Rights Act of 1964 prohibits such discrimination. She promised only to review the issue.

Lipnic is on record as supporting the EEOC’s position that discrimination on the basis of gender identity is a form of sex discrimination.

Before joining the EEOC, Dhillon was Executive Vice President, General Counsel and Corporate Secretary of Burlington Stores, Inc.; Executive Vice President, General Counsel and Corporate Secretary of JC Penney Company, Inc.; and Senior Vice President, General Counsel and Chief Compliance Officer of US Airways Group, Inc. Dhillon began her legal career at Skadden, Arps, Slate, Meagher & Flom LLP, where she practiced for 13 years.

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Equal Employment Opportunity Commission EEOC on a desk.

Getty

Through a curious chain of events, the panel that oversees the U.S. Equal Employment Opportunity Commission (EEOC) is back in business after five-months of downtime.

The EEOC is the agency charged by the U.S. Congress with enforcing our nation’s civil rights law. It has become increasingly important to workers, as unions decline and technology and globalism transform the American workplace.

But there was barely a peep when the EEOC was rendered ineffectual on January 3, 2019.

The five-member commission was whittled down to just two members after President Donald J. Trump declined to reappoint commissioner Chai Feldblum, a Democrat and the first openly lesbian EEOC commissioner. The EEOC could not assemble a quorum to enact new rules and regulations to enforce U.S. civil rights law.

That changed on May 8 when the U.S. Senate voted 50-44 to appoint Trump nominee Janet R. Dhillon, a corporate lawyer from Pennsylvania, as the newest EEOC commissioner. Senate Republicans then confirmed Dhillon, a Republican, to be the 16th chair of the EEOC.

Trump nominated Dhillon in 2017 but her nomination had languished for almost two years. So why was it suddenly approved?

The  U.S. Chamber of Commerce spearheaded a letter from several industry groups to  Senate Majority Leader Mitch McConnell (R-Ky.) last month urging him to “use all means at your disposal” to get Dhillon confirmed.

The Chamber, a former critic of the EEOC, opposes an Obama-era plan to encourage equal pay for women that requires employers with 100 or more employers to provide the EEOC with pay information broken down by job category, sex, race and ethnicity. Trump’s Office of Management and Budget (OMB) halted implementation of the plan in 2017, prompting a lawsuit by the National Women’s Law Center and the Labor Counsel for Latin American Advancement. Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia revived the plan last month, calling OMB’s stay of its implementation illegal, arbitrary and capricious.

Employers must turn over 2017 and 2018 pay data to the EEOC by Sept. 30.

In the letter to McConnell, the Chamber states:

“The inability of the Agency to act on this matter now threatens to impose millions of dollars in regulatory compliance costs on employers.”

It appears the Chamber expects Dhillon to do what the federal court would not and stay or diminish the reporting requirement. With Dhillon’s appointment, there is now a Republican majority on the EEOC.

In remarks accompanying the vote on Dhillon’s nomination, the Democratic Minority Leader  of the Senate, Chuck Schumer (D-N.Y.) said only:

“This move to restore a quorum by confirming a Republican nominee, while refusing to consider Democratic nominees – which had been the Senate’s tradition to always do these nominees in a bipartisan way, one Democrat and one Republican together – is going to imperil equal pay rules and protections for LGBTQ workers.”

Two of  the five seats on the commission remain vacant.

The other commission members are Republican Victoria A. Lipnic, who served as acting commissioner and whose term expires in 2020, and Democrat Charlotte Burrows, an African American whose term expires on July 1.  Dhillon’s five-year appointment ends July 1, 2022.

Watch Dog or Lap Dog?

Dhillon has always represented employers, not workers. Will she be a vigilant watchdog on behalf of aggrieved workers or a lap dog in the service of big business?

In recent years, the EEOC has shifted away from the prosecution of discriminatory employers to a more business friendly agenda of educational activities and free alternative dispute resolution services. It is likely that Dhillon will accelerate that shift.

In a press release commemorating her appointment, Dhillon was less than revealing:

“In the more than 50 years since the EEOC was founded, the country has made great strides toward achieving the goal of equal opportunity in the workplace … Yet, unfortunately, the goal of a nondiscriminatory workplace has not been fully achieved … This discrimination is illegal, economically counterproductive, and corrosive to the very fabric of our society.”

Of course,  it should come as no surprise if Dhillon, who is Trump’s nominee, follows Trump playbook.

A primary focus of the EEOC in recent years has been LGBTQ issues. At her confirmation hearing, Dhillon said she is personally opposed to workplace discrimination based on sexual orientation and gender identity but declined to support the EEOC’s position that Title VII of the Civil Rights Act of 1964 prohibits such discrimination. She promised only to review the issue.

Lipnic is on record as supporting the EEOC’s position that discrimination on the basis of gender identity is a form of sex discrimination.

Before joining the EEOC, Dhillon was Executive Vice President, General Counsel and Corporate Secretary of Burlington Stores, Inc.; Executive Vice President, General Counsel and Corporate Secretary of JC Penney Company, Inc.; and Senior Vice President, General Counsel and Chief Compliance Officer of US Airways Group, Inc. Dhillon began her legal career at Skadden, Arps, Slate, Meagher & Flom LLP, where she practiced for 13 years.

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