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Future Biden EEOC Chair May Face Headwinds With GOP Majority

Nov. 7, 2020, 8:47 PM

A Democrat could take the reins at the U.S. Equal Employment Opportunity Commission during President-elect Joe Biden’s administration, setting up potential clashes over workplace discrimination litigation and policy actions with the recently minted GOP majority on the civil rights agency’s leadership panel.

The quasi-independent agency filled all five seats for the first time during the Trump administration in September with the confirmation of GOP members Keith Sonderling and Andrea Lucas, and Democrat Jocelyn Samuels. They joined Republican chair Janet Dhillon and Democrat Charlotte Burrows.

The next Democratic chair will have to work with a Republican majority until at least July 2022, when Dhillon’s term expires, potentially affecting policy, litigation, regulatory initiatives, and other agency matters.

“Until now,” the EEOC’s always functioned “pretty well” as a bipartisan agency, said David Lopez, the agency’s general counsel during the Obama administration and now co-dean of Rutgers Law School. However, Dhillon has been “aggressive” in her pursuit of a “pro-Chamber of Commerce” agenda, he said.

For example, Dhillon has added “layers of bureaucracy,” Lopez said, by scaling back delegated litigation authority to the general counsel’s office, or requiring commission review of “friend of the court” briefs filed on the agency’s behalf.

The moves involving the agency’s general counsel have previously been well-received by Republicans and some management attorneys who view them as a way to rein-in “runaway regional attorneys.”

James Paretti, a former EEOC attorney, said “not everything at EEOC is always going to be strictly a party line, 3-2 vote.” Paretti, currently with Littler Mendelson, served as chief of staff and senior counsel to former Republican Acting Chair Victoria Lipnic.

“We shouldn’t just assume that the agency will be moribund for years,” he said.

Current efforts at the agency include proposed rules on the conciliation of workplace bias allegations and employer wellness plans, as well as studies on future employer pay data collections and a potential agency clarification of joint employer liability.

The agency chair has some authority unique from the rest of the commission members, including the responsibility “for the administration and implementation of policy for and the financial management and organizational development of the Commission,” according to the agency’s website, but overall, substantive policy changes and systemic or novel litigation matters must receive full commission votes.

The EEOC declined to comment on the new administration.

Agenda Items

If Biden moves sooner rather than later on choosing a Democrat to head the agency, one of the first items that could be considered is a rulemaking on conciliation, an alternative method the agency uses to resolve workplace discrimination allegations prior to litigation.

The commission voted along party lines to move the proposed rule forward before Sonderling, Samuels, and Lucas were confirmed. Comments on the proposed rule are due on or before Nov. 9, potentially teeing up the proposal to be finalized before 2021.

The agency also is considering whether employers can offer “de minimis” financial incentives to encourage worker participation in employer-sponsored wellness programs, without running afoul of the Americans with Disabilities Act. Since it was proposed in June, the agency’s been quiet on the planned rule.

It also could move forward with a proposal on when multiple employers can be held liable for discrimination violations. Other labor agencies have already taken regulatory action on the issue. The U.S. Department of Labor’s stab at a narrowed joint-employer test was struck down by a federal court in September, while the National Labor Relations Board has faced ethics inquiries related to its own joint liability rule.

The ongoing debate over collecting employer wage data, which some equal pay advocates view as a necessary measure to eliminate persistent race and gender wage disparities, also could see partisan tension.

Dhillon has committed to collecting pay data in some form, but a timeline hasn’t been solidified, and a study of previously collected data isn’t slated to be completed until the end of next year. Employer groups have opposed past methods of collecting the data, viewing the process as onerous and ineffective.

Agency Cooperation

Another unknown stems from a Nov. 2 agency hearing on a memorandum of understanding between the EEOC, the Department of Justice, and the Labor Department’s Office of Federal Contract Compliance Programs. Though the commission voted 3-2 to approve the agreement—which brings the Justice Department into what was an already-existing agreement—it could be revisited.

The pact calls for more discussion between the Justice Department and the EEOC on litigation stances, potentially discouraging the agency from contradicting DOJ, as it did over several issues during the Trump administration. Most notably, the EEOC argued in favor of extending workplace civil rights protections to lesbian, gay, bisexual, and transgender workers, a stance the U.S. Supreme Court affirmed in June, while the Justice Department disagreed.

And even if it isn’t revisited, it could give a newly Democratic Justice Department direct access to the workplace civil rights agency, according to Seyfarth Shaw senior counsel Lawrence Lorber. He also served as an official in the Labor Department.

“Be careful what you ask for,” he said.

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

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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