The EEOC has a new Chair and a quorum. Here’s what this means for employers.

Seal of the United States Equal Employment Opportunity Commission

U.S. Government [Public domain], via Wikimedia Commons

It took nearly two years for the Senate to vote on Janet Dhillon, President Trump’s nominee to Chair the U.S. Equal Employment Opportunity Commission.

However, last week, the Senate finally confirmed Ms. Dillon. So, not only does the EEOC have a new leader, but it also has a quorum with three out of five Commissioner seats filled.

What does this mean for employers? A lot.

Who is Janet Dhillon?

According to her Wikipedia entry, Ms. Dhillon began her legal career at the law firm of Skadden, Arps, Slate, Meagher & Flom, where she worked from 1991 to 2004. From 2004 to 2009, she held a variety of roles at US Airways. In 2009, Dhillon became executive vice president, general counsel, and corporate secretary of J. C. Penney. And, in 2015, she joined Burlington Stores as its executive vice president, general counsel, and corporate secretary.

Most importantly, Ms. Dhillon and I first-level LinkedIn connections.

My blogging buddy, Robin Shea, has a short profile on Ms. Dhillon here. Among other things, Robin notes that Ms. Dhillon “has expressed a preference for informal resolution over litigation, and seems underwhelmed with the proposal to collect EEO-1 compensation data. In other words, she sounds like she’ll be all right.”

Must. Resist. Urge. To. Discuss. EEO-1.

***dances the macarena***

***runs to take cold shower***

The EEOC has a quorum now. That has to count for something, right?

It sure does.

There are five Commissioner seats at the EEOC. There were three seats filled until Chai Feldblum’s five-year term ended earlier this year. That left just Charlotte Burrows and Victoria Lipnic as Commissioners, with Ms. Lipnic serving as acting Chair.  As you may have guessed, there must be three Commissioners for the EEOC to have a quorum. And now with Ms. Dhillon’s confirmation, we have a quorum again. Well, at least until Ms. Burrows’s term expires on July 1, 2019, which can be extended until September.

With a quorum, the EEOC can do lots of funs stuff, like issue guidance to employers. And not just any old guidance, we’re going to get guidance on workplace harassment, which will include information on addressing sexual harassment.

Do you know when the EEOC last issued guidance on sexual harassment? Well, in June 2016, the Co-Chairs of the Select Task Force issued a report on the Study of Harassment in the Workplace. But, that’s not official EEOC guidance. You’d have to go all the way back to 1999 when the agency updated prior policy guidance from 1990.

I’d say that we’re overdue.

How might Ms. Dhillon’s appointment impact the EEOC’s position on LGBT rights?

Good question.

Back in 2017, the Senate asked her questions about LGBT rights in the workplace.  Jacquie Lee at Bloomberg Law’s Daily Labor Report reported on an exchange between Ms. Dhillon and various Democrat Senators during which Ms. Dhillon came off as “wishy-washy” to one of them.

Ms. Dhillon told the Senate that she opposed discrimination based on LGBT status, but would prefer to have Congress legislate the issue rather than “give a quick answer” on how the EEOC should approach this “serious issue” under her leadership.

Well, the government doesn’t appear to be any closer to legislating this issue than it was two years ago. And three LGBT cases are now heading to the Supreme Court. The DOJ, which presumably will argue that Title VII does not forbid discrimination based on LGBT status, could put the kibosh on the EEOC filing a brief with the Supreme Court.

But, if the EEOC does get to file a brief, which side will it take? We’ll see.

Notwithstanding, whatever position the EEOC may take on LGBT rights will become moot after the Supreme Court rules.

So, what should employers be doing now?

Business as usual.

If you receive an EEOC Charge of Discrimination, don’t be surprised if the EEOC dismisses it summarily without any investigation. The EEOC has emphasized clearing its backlog, and I wouldn’t expect that to change under Ms. Dhillon’s leadership.

Better yet, don’t discriminate.

“Doing What’s Right – Not Just What’s Legal”