Discrimination watchdog headed for pro-business makeover

WASHING TO N The U.S. federal agency tasked with combating workplace discrimination is about to get a Republican majority for the first time in a decade, inspiring relief among employers and anxiety among workers’ rights advocates.

President Donald Trump’s picks for the Equal Employment Opportunity Commission are attorney Janet Dhillon and George W. Bush White House policy adviser Daniel Gade. Both are expected to be confirmed after the Senate returns from recess next week. Trump is also due to nominate a new general counsel for the independent agency, which is tasked with enforcing the Civil Rights Act.

Dhillon, nominated to chair the agency, has served as general counsel for J.C. Penney Company Inc., US Airways Group, and Burlington Stores, and chaired the Retail Litigation Center, an industry group which has clashed with the EEOC in court. Gade, who lost his right leg while serving in Iraq, has drawn attention for arguing that disability benefits make wounded veterans dependent on the government.

The Obama-era rule requiring large employers to disclose data on workers’ wages broken down by gender and ethnicity will be one of the first orders of business. The rule never took effect; it was frozen in August by Trump’s Office of Management and Budget, calling it unnecessarily burdensome.

At their joint Senate confirmation hearing, Gade and Dhillon said addressing that rule would be a priority. But their version could look very different from the original. “It is likely that either they will take a much more limited approach, or that they will not seek a mandatory data collection at all,” said management attorney Clare Draper, a partner at Alston & Bird.

Civil rights advocates say that without reliable data, it’s difficult to identify illegal discrimination. “There’s a lot of lip service paid to equal pay from the Trump Administration,” said Seema Nanda, chief of staff in Obama’s Labor Department and now executive vice president of the Leadership Conference on Civil and Human Rights. “The question is whether they’re really going to put their money where their mouth is and really get the data that you need to find discrimination.”

Under Obama, the EEOC for the first time held that workplace bias based on sexual orientation or gender identity is a form of sex discrimination and therefore already illegal under federal law. Federal appeals court judges are divided on that interpretation, a split that puts the issue on a path to the Supreme Court. In the meantime, civil rights advocates believe Trump’s EEOC nominees could either reverse that position or just slow-walk enforcement.

In their testimony last month, neither Dhillon nor Gade would commit to the agency’s current position that such bias is illegal. “I think it’s critical that the federal government ultimately speak with one voice on how this statute is appropriately interpreted,” Dhillon said, referring to Jeff Sessions’ Justice Department, which has come out against the EEOC’s view. She promised to review the issue and floated the possibility Congress could resolve it with legislation.

The response rankled Democratic lawmaker Patty Murray, who said it sounded “wishy-washy.”

There’s a lot of lip service paid to equal pay from the Trump administration. The question is whether they’re really going to put their money where their mouth is.