Policy Change from the EEOC Will Likely be Slow
Employers hoping for (or dreading) rapid and drastic changes to federal employment guidelines issued by the Equal Employment Opportunity Commission (EEOC) may disappointed (or thrilled) to realize that, due to the current composition of the commission, change will likely be slow and moderate for the time being.
While the commission will now be chaired by Democrat Charlotte Burrows, supported by Vice Chair Jocelyn Samuels, a fellow Democrat, the commission will continue to be majority Republican for some time.
While a change in direction can be expected, how monumental this will appear to many employers is difficult to ascertain at this point. Please continue to our blog for a more detailed assessment of likely changes in direction from the EEOC.
EEOC Gets New Chair, But Major Policy Changes Likely Will Have to Wait
President Joe Biden has switched the leadership of the Equal Employment Opportunity Commission (EEOC) from Republicans to Democrats, but the GOP still holds a majority of the commission’s five seats, meaning immediate major policy changes may not be quick in coming.
On January 20, Biden named Democrat Charlotte Burrows chair of the EEOC. She has served on the commission since 2014. Her term is set to expire on July 1, 2023, but she may be renominated.
Also on January 20, Biden named the other Democrat on the commission, Jocelyn Samuels, vice chair. Samuels joined the commission in October 2020. Her term is set to expire on July 1, 2021, but she also may be renominated.
The other members of the commission are Republicans Janet Dhillon, who served as chair during the previous administration whose term expires on July 1, 2022; Keith Sonderling, whose term expires on July 1, 2024; and Andrea Lucas, whose term expires on July 1, 2025.
Democrats remain in the minority…
How much change will the new leadership bring? Nita Beecher, an attorney with FortneyScott in Washington, D.C., says major change may be limited. “Currently, the Democrats are in the minority and will be until former Chair Dhillon leaves on July 1, 2022, unless she decides to resign before her term ends,” Beecher says. “So, there are limitations as to what Burrows will be able to do until the Democrats have a majority.”
As for what priorities the EEOC is likely to pursue in the Biden administration, Beecher says she expects LGBT discrimination and race and sex pay discrimination, including pay data collection, to top the list.
Beecher says the Republicans were focused on religious discrimination, and she expects the Democrats “to attempt to clarify that religious liberty does not allow employers to discriminate against LGBT individuals.”
Jonathan Mook, an attorney with DiMuroGinsberg P.C. in Alexandria, Virginia, agrees the Biden administration isn’t likely to be against protecting religious rights but may be more moderate when religious beliefs and other rights clash.
But, Burrow will control agency’s agenda
Rae T. Vann, an attorney with Carlton Fields in Washington, D.C., points out Burrows can make a difference in spite of Republicans holding a majority of the EEOC seats.
“Although the Democratic leadership will still be outnumbered as long as the Republican commissioners remain and do not resign prior to the expiration of their terms, Chair Burrows, by virtue of her position, gets to control the commission agenda,” Vann says. “So, while we may not see many, if any, new policy proposals requiring a commission vote—especially ones that would purport to undo any of the prior administration’s actions—the Republicans ostensibly will be unable to advance partisan policy changes either, even though they technically are in the majority right now.”
Vann says the Biden administration’s EEOC “may be limited in its efforts to enact any major regulations, such as reinstatement of the controversial EEO-1 ‘Component 2’ pay data collection, or effectuate major policy changes in the absence of bipartisan consensus.”
Article provided by content partner BLR. Author Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.