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Fortune 500 Attorney Takes Reins From EEOC’s Bipartisan Leader

May 28, 2019, 10:14 AM

A new leader could bring change to the Equal Employment Opportunity Commission at a time when the agency is navigating disputes within the Trump administration and with business groups.

Janet Dhillon was confirmed as the head of the commission on May 8. The Republican takes over for Acting Chair Victoria Lipnic (R), who told Bloomberg Law she’ll stay on as a commissioner until her term ends in July 2020.

Lipnic is a veteran GOP labor and employment official who approached her role in a bipartisan manner even when she was in the commission’s voting minority during the Trump and Obama administrations. It’s not yet clear whether Dhillon, a corporate attorney who is largely unknown among EEOC insiders, will take that same approach to polarizing topics like LGBT worker protections.

Dhillon hasn’t shed much light on her thinking on various issues already or likely to come before the commission. She largely dodged those questions during a September 2017 confirmation hearing, a common tactic for nominees awaiting a Senate vote.

Dhillon, for example, told the Health, Education, Labor and Pensions Committee that she’s personally opposed to discrimination on the basis of gender identity or sexual orientation. She also pointed out that appeals courts and Trump administration agencies are split on the question of whether LGBT bias is banned as a form of sex discrimination. The EEOC says sexual orientation and gender identity is prohibited by federal law, but the Justice Department disagrees. Dhillon said she would consult with the career professional staff who have been working on the issue.

“The current law, Senator, is in flux,” she said, responding to a question from Sen. Patty Murray (Wash.), the panel’s ranking Democrat. “We now have a split in the circuits, and we also have two agencies that have taken differing views of the very same text.”

The Supreme Court will soon hear arguments in three cases cases on the LGBT question, but Dhillon joins the commission with other big policy decisions looming. That includes what to do about a controversial pay data collection initiative, age discrimination concerns in employee wellness plans, and combating sexual harassment in the wake of the#MeToo era.

Before her confirmation as chair, Dhillon worked in the private sector as the executive vice-president and general counsel at Burlington Stores Inc. and JC Penney Company Inc. She also spent more than a decade at Skadden, Arps, Slate, Meagher & Flom.

Dhillon was not immediately available to be interviewed for this story, according to the agency.

Past Conflicts Linger

During Lipnic’s tenure, the EEOC butted heads with the Trump administration’s Department of Justice over workplace protections for LGBT individuals, and with employer groups over a pay data collection. Attorneys with business before the EEOC hope that Dhillon will put these conflicts to rest.

Several employer groups, including the U.S. Chamber of Commerce, the National Restaurant Association, and the National Retail Federation, sent a letter to Sen. Majority Leader Mitch McConnell (R-Ky.) in April, urging him to confirm Dhillon so she could be a voice against the pay data collection requirement. A federal judge of the U.S. District Court for the District of Columbia lifted a Trump administration hold on the EEOC’s plan to collect worker wage and hour data from companies with at least 100 employees.

The judge has since ruled that the agency must begin collecting the data by Sept. 30. Dhillon hasn’t publicly said how she’ll approach future pay data collections.

Lipnic told Bloomberg Law the agency should concern itself with complying with the court’s order. More conversation and collaboration between the business community and the agency could have helped to resolve the hotly contested pay data collection issue, she said.

“One of the things that I wish I could have done is to get some compromise and agreement and discussion in a newer way about what’s the best public policy approach about both equal pay and the wage gap,” which are connected but also different, Lipnic said. She voted against the pay data collection in 2016. “I still think that there should be some kind of task force on that,” she said.

Dhillon’s swearing-in also means that long-awaited wellness plan regulations could see some movement. A court struck down an Obama-era rule that would have allowed companies to pay up to 30 percent of health insurance premiums for workers who participate in wellness plans. The EEOC has twice pushed back the deadline for a new regulation, which is now slated for December.

New Boss, New Style?

Lipnic said she prioritized collaboration because that’s “what it takes to run the commission when you’re in the minority.”

She worked with Democrats on the commission to develop guidance on harassment in the workplace, a process that started in 2015. Although the White House has since put that guidance on hold, a draft version offers a comprehensive look at how the agency enforces the law.

“I hope that I have dispelled the conventional wisdom that the only time anything gets accomplished is if you’re in the voting majority,” she said. “I really eschew that polarizing idea.”

Lipnic was a Labor Department official in the George W. Bush administration for six years before joining the EEOC. That gave her a leg up when she joined the commission, Public Citizen attorney Adam Pulver said.

“As a practical matter, this meant that she not only had substantive policy knowledge, but also experience working with committed career employees in government, seeing how workers in a variety of settings experienced discrimination in the workplace, and enforcing the law against employers engaged in unlawful conduct,” Pulver, who previously worked at the DOL, said.

Pulver contrasted Lipnic’s known track record in public service to Dhillon’s corporate experience.

“Her job was to keep enforcement agencies like the one she now runs away from her clients,” he said of Dhillon. “At the end of the day, the EEOC is an enforcement agency, and the law needs to be enforced.”

Dhillon worked closely with the Retail Industry Leaders Association in the past. The trade association said it was “pleased” with her new appointment.

“Janet’s profound respect for the law, experience in the private sector, and clear-eyed perspective on public policy make her an exceptional choice to lead the Commission during this critical period of workplace evolution that is vitally important to the retail industry,” RILA General Counsel Deborah White said in an email. “Janet’s leadership will be instrumental to the continuing health of the economy.”

Lipnic said she will continue to approach her work on the commission with the same perspective she had as acting chair.

“After all, we are talking about civil rights,” she said.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com

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