Legal experts say the confirmation of President Trump’s nominees to the Equal Employment Opportunity Commission, Janet Dhillion and Daniel Gade, could recast the commission in a more employer-friendly way.
Dhillion, who is nominated to be chair of the commission, is a veteran in-house lawyer for companies that include Burlington Stores Inc. and J.C. Penney Co. Gade is a disabled Iraqi war veteran, retired U.S. Army lieutenant colonel and West Point professor. If confirmed by the Senate, the agency’s leadership would shift from Democratic to Republican and the commission from a 3-2 Democratic majority to a 3-2 Republican majority.
Not surprisingly, both nominees have big plans for the EEOC. Dhillion believes the agency could be better managed, needs to focus on outreach and education to encourage compliance and should spend more time on conciliation to avoid litigation. Gade, who lost a leg while serving as a tank company commander in Iraq back in 2005, advocates putting disabled veterans back to work while slashing their government benefits.
Some employment-law attorneys are worried that, with a new chair in place and change in atmosphere, “their job will be impeded in some, way, shape or form,” says Barry Hartstein, co-chair of the EEO and diversity practice at Littler Mendelson law in Chicago.
Meanwhile, he says, HR professionals should never lose sight of the importance of annual compliance training and keep close tabs on statewide compliance regulations since there is “enormous activity” occurring at the state level. Under a new Republican chair, he adds that the EEOC may file more local, citywide or statewide cases as opposed to engaging in large-scale litigations as previously done by its former general counsel.
“The commission in a Republican-led administration may take a stronger line in controlling the large-scale litigation brought against employers,” Hartstein says, adding that he believes both nominees will be confirmed. “Perhaps some employers may think or assume they’re going to get a fair shake that they haven’t gotten in the past with the prior administration.”
But companies shouldn’t assume the agency will cut them any slack, he says. HR should adopt a business as usual approach by responding to EEOC charges or information requests as it normally does.
Likewise, not everyone is comfortable with Gade who has sided with fiscal conservatives, says Kathy Butler, a partner at Butler & Harris law firm in Houston.
As a strong supporter for disability rights, she says, Gade’s advocacy could serve as a wakeup call for employers that generally don’t hire disabled veterans. Yet, despite Gade’s own disability, she questions whether he understands the barriers that exist for disabled veterans in the workplace. She points to many who are low-level enlisted men and women who come from small towns and need access to a good education and job.
At the very least, she says, she hopes Gade can draw attention to supervisors who typically select the “easier applicant” and also encourage HR professionals to get the message out about the importance of hiring disabled veterans and supporting them in the workplace.
Another concern is that he does not appear to support individualized assessment of people, which is at the heart of the EEOC, Butler says. She points to one of Gade’s comments, that under no circumstance should women serve in combat.
“That is lumping people together and contrary to the whole mission of the EEOC,” she says. “His lack of support for evaluating everybody as an individual is disturbing.”
Considering Gade’s limited experience with the EEOC, legal knowledge about employee rights or how the EEOC intersects with the Department of Justice, says Chuck Rullman, partner at Lane Powell law firm in Seattle, he may have difficulty getting confirmed. “In fiscal year 2016, roughly 60 percent of claims processed through the EEOC were disability-related,” he says.
He believes Dhillion stands a far better chance of confirmation if she can convince Congress that she will apply her skills to advance the mission of the EEOC.
Under her guidance, he says, HR professionals must watch which way the winds are blowing. For example, will annual employer information reports that help identify gender pay disparities still be an EEOC priority? Will the EEOC conform to the DOJ’s opinion of which groups are protected under Title VII? Will the EEOC take its foot off the gas when it comes to monitoring the Department of Labor’s wage and hour division?
“The sky isn’t falling in either direction,” says Rullman. “[Whether] there is a rebalancing of priorities that may favor employers, that’s something that remains to be seen.”