With President Trump in office for nine months now, it is hard to believe that none of his people are yet on the Equal Employment Opportunity Commission. The four current Commissioners, including the Acting Chair, Republican Victoria Lipnic, and former Chair Jenny Yang, were all appointed by President Obama.
(The Senate confirmation vote for William Emanuel, whose nomination as a Member of the National Labor Relations Board has been pending for quite some time, is expected to take place imminently.)
Here’s what we have learned about Ms. Dhillon and Dr. Gade from this week’s HELP Committee testimony, according to an article in Bloomberg BNA’s Daily Labor Report:
*Backlog. Reducing the EEOC’s backlog of roughly 70,000 charges will be a priority for them.
*LGBT rights. Both said that they personally oppose discrimination based on LGBT status. Dr. Gade said that he believed LGBT protections should be applied “as enforced by the courts.” Ms. Dhillon said that she favored a “legislative solution.” Reading between the lines, I think this means that neither nominee would try to be “cutting-edge” with LGBT rights but would comply with existing court precedent, which is pretty crazy-mixed-up right now. Regarding the “legislative solution,” I interpret this as meaning that Ms. Dhillon believes Congress would have to enact legislation before LGBT rights would be protected under federal law. (In other words, although she didn’t come right out and say it, it sounds like she doesn’t believe Title VII in its current form protects those rights.)
*Pay data collection. Ms. Dhillon said that she thought the agency’s EEO-1 pay data collection requirement — now on hold — should have been subjected to more rigorous public comment. She would consult with career agency employees and try to determine “what additional data the agency needs to improve the agency’s enforcement of equal pay laws.”
*Wellness programs and the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. Ms. Dhillon said that she would act promptly to revise the EEOC regulations, issued in May 2016, on wellness programs and the ADA and the GINA. Those regulations were recently invalidated by a federal judge in a challenge that had been filed by the AARP. Rather than vacate the regulations, the judge remanded them to the EEOC for revision. Dr. Gade, whose leg was amputated after he was wounded in Iraq, expressed support for wellness programs but also concern about how they could affect individuals with disabilities. He said that he looked forward to participating in the effort to revamp the regulations.
Even if Ms. Dhillon and Dr. Gade are both confirmed, the majority on the EEOC will still be Obama appointees. President Trump will need one more EEOC commissioner (or Ms. Lipnic will have to side with the Trump appointees, and I’m not sure she will on every issue) before we will see real change. But once the Trump appointees are in the majority, here are my predictions:
1.The charge backlog will indeed be reduced, primarily through dismissals and mediated settlements.
2. The EEOC will reverse its current position on LGBT rights, similar to what the Trump Department of Justice did recently in the pending Second Circuit case of Zarda v. Altitude Express.
3. The ill-advised EEO-1 pay data requirement will be “slow-walked” through the agency, and eventually allowed to die by neglect.
4. The wellness regulations will be quickly rewritten to address the concerns of Dr. Gade and the court in the AARP case while remaining as “wellness-friendly” as possible. That could moot the AARP lawsuit. But I still think the EEOC will appeal the decision, too.
5. We will generally see a less aggressive — and less “creative” — EEOC than we have become accustomed to during the Obama Administration. The EEOC will refocus its efforts on old-fashioned “intentional” discrimination — based on race, sex (in the traditional sense), national origin, religion, age, and disability. And, of course, retaliation. There will be less emphasis on finding and pursuing “systemic” discrimination cases. The EEOC will continue to actively promote its mediation program (which I’ve always liked and recommended to employers) and try to achieve voluntary resolution of charges.
(You can check back here in a year and tell me all the ways I was wrong!)
According to the Daily Labor Report, Republicans on the Committee are supportive of Ms. Dhillon and Dr. Gade, but Democrats are concerned, particularly about their position on LGBT rights. If the nominees clear the HELP Committee, their nominations will go to the full Senate for a confirmation vote. We’ll keep you posted.