Seyfarth Synopsis: Who sits as Chair of the EEOC unquestionably has a significant impact for all employers interacting with the Commission. At long last, the U.S. Senate has voted to confirm Janet Dhillon for the post, nearly two years after President Trump’s administration nominated her. How the new leadership at the Commission will impact broader EEOC policy positions remains to be seen.

On May 8, 2019, the Senate voted 50 to 43 to confirm Janet Dhillon as Chair of the U.S. Equal Employment Opportunity Commission. The vote was a long time coming, as Dhillon was first nominated by the Trump White House back in June 2017, and cleared the Senate Committee on Health, Education, Labor and Pensions (the “HELP Committee”) in October 2017, only to be approved by the HELP Committee again in February 2019 after her nomination had been returned to the President due to the government shutdown.

Dhillon comes to the EEOC with over 25 years of experience in the private sector. When she was nominated for the position of Chair, she had served for two years as Executive Vice President, General Counsel, and Corporate Secretary of national retailer Burlington Stores, Inc. Before joining Burlington, Dhillon led the legal departments of two other large corporations, US Airways and JC Penney. She also practiced as an attorney with Skadden, Arps, Slate, Meagher & Flom LLP for 13 years before going in-house. In addition to her legal career, Dhillon is one of the Founding Board Members of the Law Women LEAD Board at UCLA, where she earned her J.D. in 1991 and was ranked first in her class.

Given her background, many employers hope that Dhillon will take a “business friendly” approach as EEOC Chair. Indeed, last month, the U.S. Chamber of Commerce and numerous other business organizations sent a letter to Senate Majority Leader Mitch McConnell pressing for Dhillon’s confirmation. On the other hand, groups and organizations such as the NAACP had opposed Dhillon’s nomination in light of the business friendly approach she might take.

We can gather some insight into how Dhillon may proceed from her public statements. Dhillon has suggested in her testimony to the HELP Committee that she views litigation as a “last resort” for the EEOC, “believe[s] that most employers want to be law-abiding,” and that the EEOC should continue “providing tools to employers” to assist with compliance. These comments could telegraph that Dhillon intends to take a practical approach to enforcement decisions that takes into account what impact they will have on workers, companies and industries, even in the wake of the agency’s aggressive pursuit of its strategic priorities under the current administration thus far.

Additionally, Dhillon’s confirmation as Chair could usher in some change with respect to policy. During her confirmation hearing in September 2017, Dhillon stated that she was personally opposed to employment discrimination against members of the LGBTQ community, but she did not commit to upholding the EEOC’s interpretation of Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation; instead, she stated that was a question for the courts.

The Trump administration’s “outside-the-beltway” selection of Dhillon was consistent with its other somewhat non-traditional appointment announcements related to the EEOC. Shortly after Dhillon was nominated, Daniel Gade, a non-attorney and veteran of the Iraq War, also was tapped to serve on the Commission, although he withdrew his name in December 2018 after his nomination stalled. In December 2017, President Trump nominated Obama-appointee Chai Feldblum to be reappointed as a Commissioner. That announcement was subsequently criticized by conservatives, and Senate Republicans ultimately blocked Feldblum’s nomination. And last year, the White House nominated Sharon Fast Gustafson – a longtime solo practitioner who has represented primarily employees – to fill the position of General Counsel at the EEOC. Gustafson still awaits confirmation.

As Chair, Dhillon will be taking over from Victoria Lipnic, who was named Acting Chair of the EEOC by President Trump in January 2017 following the departure of Jenny Yang, the Chair during the Obama Administration.

Implications For Employers

As detailed in our other reports, the EEOC’s enforcement efforts have remained robust under the current administration, and the agency has continued to post significant results. Employers certainly should not expect the EEOC’s overall direction and enforcement efforts to shift dramatically with Dhillon as Chair, but, as noted above, we may see some changes in the agency’s approach to both policy and litigation enforcement under her leadership. As our readers know, we will diligently monitor and report on these developments as they unfold over the course of Dhillon’s tenure, both in terms of key events and emerging trends.