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  • EEOC Regains Quorum, but Key Vacancies, Questions Remain

    Employers Group | 05/13/2019 | News

    By Tammy Binford, Contributor

    The Senate’s confirmation of Janet Dhillon to take a seat on the Equal Employment Opportunity Commission (EEOC) means the agency has a quorum—for now—but the five-member commission still has two vacancies, and the term of one of the current members expires on July 1.

    Dhillon, an attorney whose career has included executive positions with Burlington Stores, JC Penney, and U.S. Airways, was confirmed on May 8 in a 50-43 vote. She joins Acting Chair Victoria Lipnic, a long-serving Republican appointee, and Charlotte Burrows, a Democratic appointee whose term expires in July. Dhillon will replace Lipnic as chair, but Lipnic will remain on the commission.

    The EEOC has lacked a quorum since January and therefore could not carry out many of its functions. The agency’s general counsel position also remains open.

    Agency Agenda

    Now that the agency has a quorum again, it will be able to more meaningfully tackle issues going before the commission, such as whether Title VII of the Civil Rights Act of 1964 protects LGBTQ individuals from discrimination in the workplace and uncertainty surrounding collection of compensation and hours-worked data for the annual EEO-1 reports required of certain employers.

    “We really don’t know what Chair Dhillon’s agenda will be,” Nita Beecher, an attorney with Fortney & Scott, LLC in Washington, D.C., says. But she points out the EEOC’s position that Title VII protects LGBTQ individuals—a position developed during the Obama administration—conflicts with the position taken by the Trump administration’s Justice Department.

    The U.S. Supreme Court has agreed to take up the issue, but the EEOC could withdraw other lawsuits it has supporting Title VII as protecting sexual orientation and gender identity, Beecher says.

    Another issue employers have been grappling with in recent months centers on new requirements for EEO-1 reports. While employers required to file the annual reports are accustomed to collecting and submitting data on race/ethnicity and gender, this year they also are required to submit pay and hours-worked data. That new Component 2 data is intended to help the agency gauge pay equity.

    Component 2 was added during the Obama administration, but before it went into effect, the Trump administration issued a stay, claiming the new requirements were too burdensome on employers. Then on March 4, 2019, a federal judge ordered the stay lifted. On May 3, the Trump administration appealed the ruling lifting the stay, but that doesn’t change the deadlines currently in effect.

    Employers face a May 31, 2019, deadline to submit race/ethnicity and gender data—known as Component 1 data. Component 2 data for 2017 and 2018 is due by September 30, 2019.

    “With the new quorum, the EEOC could propose to reconsider its Component 2 proposal, but that is unlikely to impact the September 30 deadline imposed by the judge in the case,” Beecher says. “However, for pay collections after this September, it can change that by reviewing the results of the current data and proposing to eliminate or revise the data collection based on the data collected.”

    If the EEOC decides to eliminate or revise the Component 2 requirement, it will have to go through the notice and comment process as it did for the original Component 2 requirement, says Beecher, coeditor of Federal Employment Law Insider.

    “In her hearing before the Senate Judiciary Committee, Dhillon seemed to be supportive of what the EEOC was doing, including collecting pay data, but that may change once there is a GOP majority on the commission,” Beecher says.

    Dhillon’s Record, Experience

    JW Furman, with Lehr Middlebrooks Vreeland & Thompson, P.C., in Birmingham, Alabama, says it’s hard to predict how Dhillon might affect current issues going before the EEOC.

    “She has no public-sector experience, but she has a lot of experience in leadership,” Furman says. “Her experience with employment law is only representing and defending employer interests. Most commissioners in recent history have experience developing or enforcing antidiscrimination laws.”

    How Dhillon’s term as EEOC chair will affect issues including EEO-1 requirements and whether Title VII protection extends to sexual orientation and gender identity remains to be seen.

    “I don’t know of her voicing an opinion on the EEO-1,” Furman says, “However, she cofounded the Retail Litigation Center, which advocates for industry perspectives in judicial proceedings. Since they have worked to make it harder for employees to sue employers and tighten class action standards, I can’t see them or Ms. Dhillon being in favor of more reporting requirements for employers. And the EEOC is already moving in that direction, having already appealed the district court ruling lifting the stay on Component 2 of the EEO-1.”

    Furman also notes the Trump administration’s Justice Department has opined that LGBTQ issues are not protected under Title VII.

    Furman, a frequent contributor to Alabama Employment Law Letter, says Dhillon’s leadership positions representing the interests of large employers and “evasive answers during her confirmation hearing” may signal she will try to lead the EEOC away from the large class actions it has filed in recent years and go toward less regulation with more of a focus on prevention of discrimination through training and outreach than on enforcement and litigation.

    Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.