New EEOC Chair, New EEOC Direction?

By Lehr Middlebrooks Vreeland & Thompson, P.C.

May 23, 2019

It took only 23 months, but on May 8, 2019, the United States Senate approved President Trump's nomination of Janet Dhillon to become Chair of the Equal Employment Opportunity Commission. Dhillon was confirmed by a 50 - 43 vote. Dhillon was nominated in June 2017.   
 
Prior to her nomination, Dhillon was a management-side employment lawyer for a large corporate firm from 1991 through 2004. Subsequently, she worked as General Counsel for a national airline and for several national retailers. She also was a founder of the Retail Litigation Center, which is an advocacy group advancing the interest of retailers through initiating judicial action.  
 
With Dhillon's confirmation, the Commission now has a quorum to transact businesses. Out of the five Commissioner positions, two are still vacant. The question, then, is what impact will Dhillon's appointment have on the agency? First up is for the agency to evaluate the pay data component of the EEO-1 report, which is due on September 30, 2019 (for 2017 and 2018 pay data). Will the EEOC under Dhillon's leadership revoke those requirements going forward? Based upon her record in private practice and corporate life and her publicly expressed skepticism about the value of the Component 2 data, we believe that it is likely that she will seek to revoke that requirement. It is expensive for the EEOC to enforce and manage that requirement and the information request is contrary to Dhillon's stated objective, which is to reduce the amount of EEOC-initiated litigation. Dhillon prefers the EEOC litigate less and enhance its efforts to mediate and resolve employment claims. Though we would love to be wrong, we do not think the EEOC can move through the rulemaking process to kill the pending required Component 2 data report due in September.
 
Dhillon's term expires on July 1, 2022. Commissioner Charlotte Burrows' term expires on July 1, 2019, which can be extended until September 1 if a new Commissioner is not confirmed by then. Thus, for the EEOC to revoke the pay data component of the EEO-1 report, it must act while it has a quorum - between now and September 1, 2019.