Senate Confirms 3 Commissioners, Maintaining EEOC’s Right-Leaning Quorum

The U.S. Senate this week confirmed the nominations by Republicans of three commissioners for the U.S. Equal Employment Opportunity Commission (EEOC).

Keith E. Sonderling, deputy administrator of the U.S. Department of Labor’s Wage and Hour Division, was confirmed Sept. 22 with a term that expires July 1, 2024 with a vote of 52-41. Sonderling was nominated in July 2019, but his nomination expired at the end of the year without receiving a confirmation vote. He was renominated in March. Management-side attorney Andrea R. Lucas was confirmed Sept. 22 for a term expiring July 1, 2025. Lucas, nominated in March 2020, was confirmed 49-44.

The following day, the Senate confirmed Jocelyn Samuels, a civil rights lawyer by a vote of 54-42 with a term expiring July 1, 2021.

The confirmations end Commissioner Victoria A. Lipnic’s tenure, render the commission fully staffed and maintain its Republican majority. Republicans held a 2-1 edge on the agency’s leadership panel since agency chair Janet Dhillon was confirmed in May 2019 but before that, it operated without a quorum for some time.

Legal experts previously said the workplace civil rights agency had continued the enforcement stance it took under the Obama administration. In a Dec. 30 report, law firm Seyfarth Shaw LLP noted that the Commission “continued to pursue aggressive litigation and close out settlements at high rates” in 2019, despite some setbacks. The also firm noted that, in spite of the loss of quorum and a political shutdown, there were several notable developments in EEOC-initiated litigation last year, including LGBT bias reaching the U.S. Supreme Court; limits set on the EEOC’s ability to regulate employers’ use of arrest and conviction records; and pay data collection.

Early this year, the federal agency said it intended to focus on “robust” compliance assistance and excellent customer service in 2020 at the direction of newly installed chair, Dhillon. The agency said its focus on compliance assistance would include outreach to the private, public and federal sectors, especially the small business community; strong partnerships with employer and advocacy groups; and updated guidance documents. A focus on compliance assistance over enforcement is standard for federal agencies under Republican administrations.

In addition to developing awareness of the chair’s priorities, employers may want to become familiar with the list of strategic enforcement priorities established by the EEOC. These include preventing systemic harassment; ensuring equal pay; preserving access to the legal system; eliminating barriers in recruiting and hiring; and protecting vulnerable workers, including migrant workers and those in underserved communities.

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