Dhillon Will Be New EEOC Chair Despite Concerns on LGBT Rights

 

Allen Smith, J.D. By Allen Smith, J.D. May 9, 2019
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​The U.S. Senate approved Janet Dhillon to chair the Equal Employment Opportunity Commission (EEOC) on May 8 after a two-year impasse over her nomination due to fears that she'd change the EEOC's position on lesbian, gay, bisexual and transgender (LGBT) rights.

The commission currently maintains that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity—a stand that is at odds with the Department of Justice and that Dhillon has declined to say she would continue.

The EEOC now has three commissioners, though it's supposed to have five, but there are now enough commissioners for it to once again issue new policies, guidance and regulations. But that will change again when Charlotte Burrows steps down from the commission when her term expires July 1.

We've rounded up articles from SHRM Online and other trusted news sources on Dhillon's confirmation.

Business Groups Backed Dhillon

Many business groups, including the U.S. Chamber of Commerce and National Association of Restaurants, urged the Senate to confirm Dhillon. She has extensive business experience, working as in-house attorney for Burlington Stores, JCPenney and US Airways. Senators voted 50-43 to confirm her, restoring the agency's "quorum"—a majority of the commission's five seats being filled—for the first time in more than four months. Victoria Lipnic, the EEOC's acting chair, will remain on the EEOC as a commissioner through July 1, 2020.

(Bloomberg Law)

LGBT Concerns Expressed

Sen. Patty Murray, D-Wash., said at a Sept. 21, 2017 nomination hearing that she was concerned that Dhillon would not defend the EEOC's current stance on LGBT rights. Dhillon said that she personally opposed discrimination based on sexual orientation or gender identity. But she added that the current law is in flux, now that there is a split in the circuit courts and two agencies—the Department of justice and the EEOC. "Sounds wish-washy to me," Murray responded.

(SHRM Online)

Agencies Have Differing Positions

The Department of Justice announced that it opposed the EEOC's position in a July 2017 brief before the 2nd U.S. Circuit Court of Appeals, asserting that Title VII does not prohibit sexual orientation discrimination. The Justice Department acknowledged the EEOC's stance but said that the agency "is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade."

(SHRM Online)

Supreme Court Will Consider Title VII's Scope

The U.S. Supreme Court will more clearly define Title VII's coverage, announcing on April 22 that it will review the case that was before the 2nd Circuit, as well as two other LGBT cases. The 2nd Circuit adopted the EEOC's view and decided that Title VII prohibits sexual orientation discrimination. In another case the high court will review, the 6th Circuit ruled that Title VII prohibits transgender discrimination. But in the third case, the 11th Circuit determined that Title VII does not ban sexual orientation discrimination.

(SHRM Online)

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Congressional Action Proposed

The House of Representatives has proposed the Equality Act, which would expressly include sexual orientation and gender identity in the definition of "sex" under federal anti-discrimination laws that cover employment, housing, public accommodations, federal funding and the jury system. Title VII already expressly prohibits sex discrimination. The bill is likely to pass the Democrat-controlled House of Representatives but may stall in the Republican-controlled Senate.

(SHRM Online)

Pay-Data Reporting Is Due in September

Employers will have to wait to see if Dhillon's confirmation has any effect on the pay-data reporting requirement. In the 2017 hearing, Dhillon said the pay-data reporting requirement would have benefitted from "a more vigorous" rulemaking process. But the EEOC has announced that employers must report pay data, broken down by race, sex and ethnicity, from 2017 and 2018 payrolls. The pay-data reports (Component 2 of the EEO-1 form) are still due Sept. 30. Employers should keep in mind that they still must submit their 2018 data for Component 1 of the EEO-1 form by May 31, unless they request an extension. The extension deadline for Component 1 is now June 14.

(SHRM Online)

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