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► Does New Chair Of The EEOC Mean A New Day At The Agency?

Earlier this spring, Republican Janet Dhillon was officially sworn in as the 16th chair of the U.S. Equal Employment Opportunity Commission (EEOC)—the federal agency that administers and enforces civil rights laws against workplace discrimination and harassment. Dhillon had been nominated by President Donald Trump in 2017 and confirmed by the U.S. Senate on a vote of 50-43 on May 8. Her term as chairwoman will expire on July 1, 2022.

Filling Vacancies

The bipartisan commission Dhillon joins is composed of five seats, each appointed by the president with the consent of the senate. On the commission, she joins Republican Victoria A. Lipnic, who has served as acting chair since January 2017, and Democrat Charlotte Burrows—whose term expires on July 1 but can be extended by an additional 60 days (until September 1), if a new pick is not named. With Dhillon's swearing-in, the commission regains its three-seat quorum it lost in January.

The other two seats on the commission (one designated for a Republican and the other for a Democrat) remain open after Democrat Chai Feldblum left her seat to go into private practice and Republican nominee Daniel Gade withdrew his name from consideration. It has been rumored that Democrats are contemplating nominating Office of Special Counsel's Louis Lopez, who has been endorsed by the Hispanic National Bar Association, for the open Democratic seat.

In addition to the two open seats, the commission's general counsel position remains open, as it has been since December 2016. Republican Sharon Fast Gustafson has been nominated for the position, yet she still awaits confirmation because civil rights organizations have voiced concerns about some evasive answers given during her confirmation testimony regarding LGBTQ workers' rights.

Dhillon's Background

Dhillon graduated magna cum laude from Occidental College, a small liberal arts college in Los Angeles, before attending law school at the University of California, Los Angeles (UCLA), where she ranked first in her class.

Following law school, she worked for 13 years at the law firm of Skadden, Arps, Slate, Meacher & Flom before serving as senior vice president, general counsel, and chief compliance officer for US Airways Group, Inc. After US Airways, she served as executive vice president, general counsel, and corporate secretary for JC Penney Company, Inc., before serving as executive vice president, general counsel, and corporate secretary for Burlington Stores, Inc.

In addition to her employment with three Fortune 500 companies, Dhillon also cofounded and currently sits on the board of the Retail Litigation Center (RLC), a coalition of chief legal officers of the country's leading retail companies that advocates for the retail industry's perspective in judicial proceedings.

With respect to employment-related issues, the RLC has taken positions in favor of narrowing class action and employer liability standards, supporting mandatory arbitration and class action waivers, and increasing judicial review of EEOC actions.

Lastly, Dhillon is married to Uttam Dhillon, who previously served as deputy counsel and deputy assistant to the president and is currently the acting administrator of the Drug Enforcement Administration.

Looking Ahead

There are currently two major issues affecting the EEOC. The first issue is the EEO-1 report, a federally mandated annual survey that requires private employers with 100 or more employees (and federal contractors with 50 or more employees) to provide data on the race/ethnicity and gender of their workforce across 10 job categories (referred to as "Component 1 data").

Two years ago, the EEOC expanded the EEO-1 survey to require employers to provide wage and hour data of their workforce (referred to as "Component 2 data"). Although private employers with more than 100 employees are required to submit both Component 1 and Component 2 data, only federal contractors with 100 or more employees are required to submit Component 2 data.

Before this new requirement could take effect, the Office of Management and Budget (OMB) stayed (or halted) the EEOC's collection of Component 2 pay data. A lawsuit naturally ensued, and on March 4, 2019, a federal court in Washington, D.C., lifted the OMB's stay of the revised EEO-1 report that included the collection of Component 2 data. Because of the court's ruling, employers are currently required to provide Component 2 data for the 2017 and 2018 calendar years as part of the EEO-1 reporting process by September 30, 2019.

Although the U.S. Department of Justice (DOJ) has filed an appeal of the court's ruling, the EEOC has issued a statement through its website telling employers the appeal doesn't affect the September 30 deadline. The EEOC has yet to decide if it will eliminate or revise the Component 2 data requirement, although any decision to do so would still be subject to the notice and comment rule-making process used by government agencies when creating new administrative regulations.

The second major issue is the workplace rights of LGBTQ employees. Although the EEOC maintains that discrimination based on sexual orientation or gender identity constitutes sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Dhillon declined to adopt the agency's position during her confirmation hearing), the DOJ has taken the opposite stance. The U.S. Supreme Court has agreed to hear a series of cases confronting this issue but will not likely rule on the matter until 2020.

So, while it's still too early to tell which direction the EEOC will head under Dhillon's leadership, her background suggests it will continue in its current direction, which is away from large class actions and toward less regulation.

By Martin J. Regimbal. Mr. Regimbal is a shareholder of The Kullman Firm, and an editor of Mississippi Employment Law Letter.

[8/2019]

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