The federal agency tasked with combating workplace discrimination is about to get a Republican majority for the first time in a decade, inspiring relief among employers and anxiety among workers’ rights advocates.
President Donald Trump’s picks for the Equal Employment Opportunity Commission are attorney Janet Dhillon and George W. Bush White House policy adviser Daniel Gade. Both are expected to be confirmed after the Senate returns from recess next week. Trump is also due to nominate a new general counsel for the independent agency, which is tasked with enforcing the Civil Rights Act.
Dhillon, nominated to chair the agency, has served as general counsel for J.C. Penney Company Inc., US Airways Group, and Burlington Stores, and chaired the Retail Litigation Center, an industry group which has clashed with the EEOC in court. Gade, who lost his right leg while serving in Iraq, has drawn attention for arguing that disability benefits make wounded veterans dependent on the government.
The Obama-era rule requiring large employers to disclose data on workers’ wages broken down by gender and ethnicity will be one of the first orders of business. The rule never took effect; it was frozen in August by Trump’s Office of Management and Budget, calling it unnecessarily burdensome.
At their joint Senate confirmation hearing, Gade and Dhillon said addressing that rule would be a priority. But their version could look very different from the original. “It is likely that either they will take a much more limited approach, or that they will not seek a mandatory data collection at all,” said management attorney Clare Draper, a partner at Alston & Bird.
Civil rights advocates say that without reliable data, it’s difficult to identify illegal discrimination. “There’s a lot of lip service paid to equal pay from the Trump Administration,” said Seema Nanda, chief of staff in Obama’s Labor Department and now executive vice president of the Leadership Conference on Civil and Human Rights. “The question is whether they’re really going to put their money where their mouth is and really get the data that you need to find discrimination.”
Under Obama, the EEOC for the first time held that workplace bias based on sexual orientation or gender identity is a form of sex discrimination and therefore already illegal under federal law. Federal appeals court judges are divided on that interpretation, a split that puts the issue on a path to the Supreme Court. In the meantime, civil rights advocates believe Trump’s EEOC nominees could either reverse that position or just slow-walk enforcement.
In their testimony last monthn, neither Dhillon nor Gade would commit to the agency’s current position that such bias is illegal. “I think it’s critical that the federal government ultimately speak with one voice on how this statute is appropriately interpreted,” Dhillon said, referring to Jeff Sessions’ Justice Department, which has come out against the EEOC’s view. She promised to review the issue and floated the possibility that Congress could resolve it with legislation.
The response rankled Democratic lawmaker Patty Murray, who said it sounded “wishy-washy.”
At the hearing, Republicans also focused on another initiative that, like the pay-data rule, has landed back at the agency. In 2016, the EEOC issued regulations allowing companies to offer significant employee discounts on health insurance premiums as an incentive to participate in “voluntary” wellness programs.
The rule was meant to reconcile the Affordable Care Act, which encourages wellness programs, with laws that prevent companies from forcing employees to share medical information. The AARP sued to stop the rule, arguing that those discounts amount to coercion. In August a federal judge ruled the EEOC hadn’t sufficiently justified its approach.
Conservative politicians defend the wellness programs. “If you’re looking for a way to implement incentives for those lifestyle changes, it’s hard to think of a better way than the health insurance provided by employers,” committee chair Lamar Alexander told the nominees at their hearing.
Dhillon told Alexander she would make it a priority “to redo those regulations to comply both with congressional intent and obviously the court’s direction as well.”
Employment lawyers expect Trump’s EEOC to devote more of its limited resources to help companies understand and follow the laws. “It should be less about making examples out of companies, and more about how to help companies comply,” said management attorney Michael Lotito. Gade told senators he held a “sincere belief that most discrimination is unintentional and could be prevented with better information.”
Management attorneys also expect Trump’s appointees to focus less on litigating “systemic” cases designed to force large-scale changes or establishing new legal precedent.
Liberals worry the EEOC will grow weaker, and that the Trump Administration’s overall posture would discourage marginalized workers from bringing allegations to the EEOC in the first place.
“This administration in numerous ways has declared open season on LGBT people,” said Jennifer Pizer, law and policy director for the non-profit Lambda Legal. “There’s a significant risk, or even likelihood, that LGBT people will not take their problems with discrimination to this administration.”
Dhillon told senators that she saw her own professional success as “a testament to the impact” of the EEOC. She promised to make the agency “highly responsive” to workers alleging discrimination, taking on its notorious backlog while treating litigation as “a last resort.”
There are limits to how quickly or completely President Trump’s appointees could remake the agency, said Obama’s former EEOC general counsel David Lopez. One potential bulwark is current Republican commissioner Victoria Lipnic, who is slated to serve until 2020, and has voted with Democrats on some high-profile issues like gender identity bias.
Another, said Lopez, is the agency’s career staff. “There’s a very dedicated group that’s committed to enforcing civil rights, and they’re going to continue to do it until someone puts a check on them at least a couple of times.”
Current Democratic commissioner Chai Feldblum said she’s reserving judgment. “When there is a Republican majority, then I’ll see how much it’s different,” said Feldblum. “I see no reason to spend time worrying or speculating right now. What can I do?”