President Trump’s nomination of Janet Dhillon to chair the Equal Employment Opportunity Commission (EEOC) could mean major changes ahead for an agency better known for aggressive enforcement than cooperative outreach.
Dhillon’s nomination came as a surprise because Trump earlier this year designated sitting Republican Commissioner Victoria Lipnic as Acting Chair, making it seem she would get the nod. Lipnic’s career was spent almost entirely in the federal government. Dhillon, by contrast, has worked in the private sector and currently is general counsel and corporate secretary for retailer Burlington Stores.
This could be another example of Trump’s “draining the swamp” of Republican officials perceived to have gone native after serving in liberal D.C. for too long.
If confirmed by the Senate, Dhillon will serve a five-year term as chair or as a commissioner if a Democrat becomes President in 2021. Under law, three of the five commissioners come from the President’s party and two from the opposition party.
Earlier this year, before Trump’s inauguration and his pick of Lipnic as Acting Chair, former EEOC Chair and Democrat Jenny Yang declared there would be no major policy changes by the commission under Trump.
Yang is slated to leave the EEOC in September and a vacant Republican seat also awaits a Trump nomination. Democrat Chai Feldblum’s term ends in July 2018. The EEOC general counsel post also is vacant and Trump needs to nominate a new one. The general counsel holds considerable sway by directing which litigation the EEOC chooses to pursue.
Why It’s Important
When it came to the EEOC expanding civil rights protections into every corner of American life, the Obama Era commissioners didn’t just push the envelope—they tore it to pieces. How will a new Republican-led commission deal with this legacy?
At a meeting of labor lawyers in Florida a month before Dhillon’s nomination, two EEOC regional officials promised one thing: The controversial EEO-1 form expansion is all but dead.
They noted that after Lipnic became Acting Chair, she said not to expect any “major” changes, with one exception—the controversial expansion of EEO-1 reporting requirements for employers. Adopted last year, companies with 100 or more employees must now file annual EEO-1 reports with detailed and voluminous pay data broken down by gender, race and ethnicity. Lipnic said she wanted to re-evaluate the costs and benefits of the new form, and with a Republican majority expect the EEO-1 decision to be reversed.
Other areas designated by the EEOC as high priorities likely to receive greater scrutiny include emphasis on protecting illegal immigrant workers, and targeting temporary staffing agency employees and independent contractors to support the Democrats’ union allies.
Another area to watch is EEOC’s stress on expanding antidiscrimination protections for gays. Although Congress explicitly excluded gays and transsexuals from federal civil rights law, the EEOC in recent years sought to extend that protection anyway. Recently, a division among federal appeals courts signals a certain Supreme Court showdown on this issue.
Two federal appeals courts have come to opposite conclusions: One says the law extends protections to gays; the other says it doesn’t. A third appeals court asked for the EEOC’s input to help it reach a decision
The Trump-era commission also may take a second look at its strict scrutiny of employer wellness programs, and its recent announcement that employers must offer accommodations for mentally ill employees under the Americans With Disabilities Act.
Perhaps we also will see changes in the attitude and behavior of EEOC employees, collaborating with employers who are sincere in wanting to make things right instead of seeking confrontations with the goal of racking up big fines and settlements.
David Sparkman is founding editor of ACWI Advance (www.acwi.org), the newsletter of the American Chain of Warehouses Inc., as well as a member of the MH&L Editorial Advisory Board.