Employment Law Daily EEOC nominees don’t appear committed to prior Title VII policy on LGBT discrimination
Friday, September 22, 2017

EEOC nominees don’t appear committed to prior Title VII policy on LGBT discrimination

By Pamela Wolf, J.D.

On September 19, 2017, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a hearing that included testimony from President Donald Trump’s nominees to serve as EEOC Commissioners, Janet Dhillon and Daniel Gade. The nominees faced some tough questions, including about their position on the EEOC’s controversial policy holding that Title VII protects LGBT employees from discrimination. Neither nominee left much hope that they were committed to furthering that policy.

Dhillon, who is currently General Counsel of Burlington Stores, Inc., and has served in a similar role at three Fortune 500 companies and practiced law at Skadden, Arps, Slate, Meagher & Flom LLP for 13 years, clearly has the chops to fill the spot. If confirmed, Dhillon would serve a five-year term expiring July 1, 2022, replacing former chair Jenny Yang. Trump wants Dhillon to serve as chair of the commission.

Gade is a West Point graduate with ample government experience, but he is not an attorney, a fact that as he acknowledged at the hearing makes him a unique candidate. The nominee nonetheless holds a M.P.A. and Ph.D. in public administration and policy from the University of Georgia. If confirmed, Gade would serve the remainder of a five-year term that ends July 1, 2021, replacing Constance Barker.

Dhillon on agency operations. In her opening remarks to the HELP Committee, Dhillon pointed to the ongoing and substantial backlog of charges at the EEOC. “It is the sad reality that too often, justice delayed is justice denied,” she remarked. “Evidence can be misplaced, and memories fade with the passage of time. The opportunity to quickly remediate a discriminatory practice can also be lost—potentially to the detriment of other impacted employees.” Dhillon said that it’s “critical that charges are handled promptly.” She also said “meaningful conciliation efforts” are “a vital part of the agency’s mission.”

Dhillon also said that litigation “truly is a last resort” and that when necessary, the “EEOC’s litigation should be conducted in accordance with the highest ethical standards.” She also said that called outreach and education “critically important to the EEOC’s mission.”

Process behind new EEO-1 report. While Dhillon sees the EEOC’s focus on pay discrimination as important, she was less than enthusiastic about the agency’s revised EEO-1 report and its new pay data requirements. She said that the EEO-1 report changes would have benefited from a “more vigorous process.” She also though it unfortunate that the EEOC did not incorporate some of the comments made by stakeholders into the report.

LGBT protections under Title VII. Some of Dhillon’s words came back to haunt her later in the hearing when Senator Tammy Baldwin (D-Wis.) questioned the nominee about whether she would enforce that EEOC’s policy that Title VII protects against sexual orientation and gender identity discrimination in employment. Dhillon suggested that she would wait for the currently inconsistent positions of the Department of Justice and the EEOC to be reconciled and the federal government to speak with one voice on how Title VII is appropriately interpreted before she committed to enforcing that policy. Baldwin reminded Dhillon of her earlier statements that filing a discrimination charge is “a courageous act,” and that “justice delayed is justice denied.” Baldwin pointed out that the nominee’s position on the Title VII question would have the opposite result from what Dhillon had embraced earlier.

No further than the courts. When questioned later by Senator Tim Kaine (D-Va.), Dhillon would go no further than stating that she would enforce the EEOC’s Title VII policy protecting LGBQ individuals against employment discrimination in jurisdictions where federal circuit courts have ruled consistent with the EEOC’s policy. She would not commit to enforcing the policy in jurisdictions where the circuit has either not ruled on the question, or has ruled contrary to the EEOC’s position.

On the same topic, Gade would say only that he is committed to enforcing the law as passed by Congress and interpreted by the courts. Pressed further, he also said he was unaware of any movement afoot at the EEOC change the commission’s Title VII policy, and that he would not drive that change unless there was legal reason to do so.

Gade’s unique perspective. Gade noted in his opening remarks that he brings “a unique, though not unprecedented, background” to the position of Commissioner due to his status as “one of very few non-attorneys to be appointed to the EEOC.” He also pointed to the “small number of Veterans as Commissioners in the 53 years since [the EEOC] was created.” Sharing his background, he said that from 2007 to 2008, he was an Associate Director of the Domestic Policy Council at the White House, where he was responsible for Veterans’ disability policy, ADA oversight, and military health care policy. He also served on two different advisory committees to the VA Secretary, and since 2015, had served on the National Council on Disability, where he was active in various critical disability policy initiatives. Gade also taught political science and leadership courses at the United States Military Academy after earning both a Master’s degree and a PhD in public administration and policy.

“I believe that my record of accomplishment in academia, government, military, and non-profit roles makes me well-suited to serve on the EEOC,” Gade said. “I will bring a fresh, energetic outside perspective, well-developed judgment, proven character, and Constitutional fidelity to my role as a Commissioner.”

Gade’s priorities. Gade laid out his priorities if confirmed. First, he would address the backlog of charges being investigated by the EEOC. Second, Gade would “take a close look at the Strategic Enforcement Plan, in concert with the other Commissioners and professional staff, to ensure that it is plotting the right course into the future.” Third, the nominee would “spend time on the educational and outreach functions of the EEOC, in the sincere belief that most discrimination is unintentional and could be prevented with better information.”

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