Employers are preparing for a wave of progressive regulatory activity from the U.S. Equal Employment Opportunity Commission, which is poised to have a Democratic majority by the end of the year.
President Joe Biden announced April 1 that he intends to nominate civil rights attorney Kalpana Kotagal to the EEOC. If confirmed, Kotagal would replace Republican commissioner Janet Dhillon when her term expires in July, handing Democrats the first EEOC majority in two years.
Sexual harassment, LGBTQ discrimination, and employee wellness programs are just a few of the issues the commission is likely to take up. And with increased funding, the civil rights watchdog will have more resources for enforcement activity as a means of implementing those policies.
EEOC Chair Charlotte Burrows, a Democrat, has already made some moves in that direction that don’t require a commission vote, such as adding a nonbinary gender option to the agency’s charge intake form last week.
“I think that’s a clear indicator of where they’re going,” said Mike Elkins, founder and partner of Florida-based MLE Law. “I think they’re going to take on some of these topical social issues.”
But there are indications that Burrows is holding back on some guidance and directives until she knows she has the votes in place to implement them.
“Chair Burrows worked in the Senate for many years; she knows how to count votes, and she knows the policies that she wants,” according to former Republican Commissioner Victoria Lipnic. “She is definitely waiting until she has a voting majority.”
Congress handed the EEOC $420 million for fiscal year 2022, a jump from its $405.5 million budget the year before. The agency has said that a big chunk of those funds will go toward hiring staff to boost enforcement.
Biden’s FY 2023 budget wish list seeks another $464.7 million for the commission.
The agency will use the extra funding to focus “on four broad areas: racial justice and combatting systemic discrimination on all protected bases, pay equity, addressing the civil rights impact of the COVID-19 pandemic, and further strengthening the agency,” Burrows said in an EEOC statement last week.
Policies that stalled during the Trump administration are likely to be high on the EEOC’s list once the Democrats regain a majority.
Biden, for instance, has highlighted the importance of employer pay data reporting. The EEOC adopted such a policy during the Obama administration, but the action was halted during the Trump administration.
The EEOC already is “looking hard” at ways to improve its data collection to identify pay disparities, Burrows said during a March 24 webinar.
Meanwhile, the agency’s sexual harassment guidance has been in limbo since November 2017. That policy, like several other issues on the commission’s agenda, has bipartisan support overall despite partisan disputes over prospective individual provisions.
The EEOC also is expected to issue regulations that would address incentives for workers to take part in company-sponsored wellness programs, according to Chatrane Birbal, vice president of government relations at the HR Policy Association.
Such programs must be voluntary to comply with federal disability and genetic information laws. Companies have been asking the EEOC for clarification on these programs for years, but they’ve become more salient now that employers are considering incentives to encourage workers to receive Covid-19 vaccines.
“As a result, some employers have foregone wellness programs as to not run afoul of the laws and some are relying on earlier guidance and working closely with legal counsel to ensure their wellness programs comply with all applicable laws,” Birbal said.
Employers are also watching for a vote on the agency’s strategic enforcement plan, which will likely come in the fall. The plan sets the EEOC’s litigation priorities, though that’s also highly influenced by the agency’s general counsel. That position, which requires Senate confirmation, has been vacant since March 2021, and Biden has yet to announce a nominee.
Race to Confirm
A Democratic-majority EEOC, however, isn’t guaranteed this year, especially if the Senate fails to take action on Kotagal’s nomination before Dhillon’s term expires July 1.
If Kotagal is not confirmed by the end of Dhillon’s term, Dhillon can choose to remain in her position for 60 days. If the Senate still hasn’t confirmed Kotagal at that point, Dhillon can choose to hold over until the Senate adjourns in December.
Dhillon declined to comment on her plans.
“The norm has been—certainly for the last dozen years—that even when there has been a nominee, the sitting commissioner has often held over beyond the expiration of their term,” Lipnic said.
But Chai Feldblum, a former EEOC Democratic commissioner, said she’s confident that the White House and Senate will prioritize getting Kotagal confirmed by July.
“There is a great deal of important work for the Commission to do,” Feldblum said.