On May 8, 2019, the U.S. Senate confirmed Janet Dhillon as the new Chair of the Equal Employment Opportunity Commission (“EEOC”), by a vote of 50-43. Ms. Dhillon, the former general counsel for Burlington Stores, Inc., JC Penny Co., Inc., and US Airways Group Inc., will take over the chair position from fellow Republican, Acting Chair Victoria Lipnic, who will remain on the Commission. Ms. Dhillon, a Trump appointee whose confirmation has been pending since June 2017, will join Ms. Lipnic and Democrat Charlotte Burrows, whose term expires on July 1, 2019, to fill three seats of the five-member Commission and restore the agency’s quorum. No other nominees are pending to fill the remaining seats after Daniel Gade withdrew his nomination at the end of 2018. With a quorum, the agency can now issue guidance to employers, make decisions regarding significant litigation, and undertake its rulemaking authority.
The EEOC is expected to be busy in the next few months, in particular with the EEO-1 survey it administers each year. As previously reported by HR Legalist, on March 4, 2019, a federal court reinstated the 2016 rule that would have expanded EEO-1 reporting to add wage information on March 4, 2019. On April 3, 2019, then-Acting Chair Lipnic requested a September 30, 2019, deadline to collect the new wage data. That deadline was approved by the court, and the EEOC’s website now indicates that employers who file EEO-1 reports should begin preparing to submit the expanded pay data for the calendar years 2017 and 2018, by September 30th.
Ms. Dhillon has previously expressed concerns about the expanded EEO-1, and has indicated that the requirements should have been subjected to more rigorous public comment. Her confirmation could lead to changes in the rules including the rescinding of the expanded EEO-1 data collection. In early May, the Department of Justice filed an appeal of the court ruling reinstating the rule. However, until further notice, employers should begin collecting the wage data to comply with the September 30, 2019 deadline.
Another significant issue looming over the EEOC, which Ms. Dhillon’s nomination might impact, is the current legal battle over the rights of LGBTQ employees. As recently discussed by HR Legalist in our April 24, 2019, blog post, the Supreme Court is set to decide if Title VII’s prohibition of gender discrimination also includes sexual orientation discrimination and gender identity discrimination. The EEOC has previously supported a broad view of Title VII which includes workplace protections for LGBTQ employees, even while the Department of Justice under the Trump Administration has taken the opposite position. When asked about this issue during her confirmation hearing, Ms. Dhillon declined to fully support the agency’s position and only promised to review the issue and consult with staff.
However, employers should not expect any drastic changes in the way the EEOC operates. On April 10, 2019, the agency released its Fiscal Year 2018 Enforcement and Litigation Data. Retaliation continued to be the most frequent charge filed with the EEOC, representing 51.6% of all charges filed. The EEOC has also seen a 13.6% increase in sexual harassment charges since 2017. In its recent report, the EEOC acknowledged the impact of the #MeToo movement on these types of charges, and predicted that this trend would continue.
While EEOC is only one of many fronts in the ever-changing landscape of employment law, it is important to watch because it often takes positions that serve as a “preview” of the way that courts and other agencies will interpret the law.