Senate confirms Trump nominee Janet Dhillon as EEOC chair

Dive Brief:

The U.S. Senate confirmed Janet Dhillon, one of President Donald Trump's nominees for the U.S. Equal Employment Opportunity Commission (EEOC), by a 50-43 vote Wednesday.
Dhillon is designated to become chair of the EEOC, replacing current Acting Chair Victoria A. Lipnic. Prior to her nomination, Dhillon served as EVP, general counsel and corporate secretary at Burlington Stores, Inc. with similar roles at JC Penney and US Airways Group, Inc., according to the White House. Dhillon's five-year term is set to expire July 1, 2022.
The vote means EEOC's quorum has been restored with the addition of a third commissioner. The agency has been operating without a quorum since the early part of January following the departure of former commissioner Chai Feldblum. This impacted some of the agency's activities, although Feldblum told HR Dive at the time that the agency would "continue its work in full force."

Dive Insight:

Dhillon's confirmation has been a long time coming — Trump nominated her back in June 2017 — but it doesn't resolve all of EEOC's outstanding staffing questions. Another Trump nominee to the commission, Daniel Gade, backed out of the process and the agency is also waiting on the confirmation of Sharon Fast Gustafson for general counsel, though civil rights organizations have voiced concerns about "evasive answers" during her confirmation testimony regarding the rights of LGBTQ workers, Business Insurance reported.

The news may be welcome for the EEOC given what should be a busy next few months for it. Beyond the agency's role in resolving employment disputes and bringing lawsuits on behalf of U.S. workers, it also oversees regulation of several federal laws. One particularly high-profile saga has been the annual EEO-1 survey administered by EEOC. Two years ago, the agency added a second component to the process to collect employee pay data. The White House put the addition on hold, but it was recently reinstated by a federal judge. Employers now have until Sept. 30 to collect and submit pay data from both the 2018 and 2017 calendar years.

One of Dhillon's early challenges as EEOC chair will be to address employer concerns about the agency's data collection procedures. During litigation over EEO-1 Component 2, EEOC's chief data officer was quoted in court documents questioning the agency's preparedness to collect pay data. The collection might yield poor quality results, the chief data officer said, because of "limited quality control and quality assurance measures" implemented during an expedited timeline.

Importantly, Dhillon and Lipnic — the agency's other Republican commissioner — both have expressed concern about the new requirement, and a handful of stakeholders said Dhillon's confirmation could pave the way for new rules.

Employers may not see an overnight sea-change in the way EEOC approaches certain litigation or outreach on issues like harassment and discrimination, however; if anything, the agency may simply continue the initiatives it had under Lipnic, Feldblum told HR Dive in an interview published in February. On the horizon, however, is an ongoing court battle with the U.S. Department of Justice over the rights of LGBTQ employees under Title VII of the Civil Rights Act of 1964. A series of cases on the issue has been taken up by the U.S. Supreme Court, which is expected to issue rulings by the end of its current term this summer. EEOC has long maintained that discrimination based on sexual orientation or gender identity is sex discrimination and therefore outlawed; Dhillon, however, declined to take up the agency's position during her confirmation hearing, promising only to review the issue and consult with commission staff. Lipnic has backed the commission's position, however, meaning a shift in that position may be unlikely.