By Jacquie Lee

Nominees for two spots on the EEOC told a Senate panel Sept. 19 that reducing the agency's backlog of cases will be a priority if they are confirmed for the positions. Janet Dhillon and Daniel Gade also addressed sex discrimination issues, pay data collection, and their visions for wellness programs.

Dhillon, who was nominated to chair the Equal Employment Opportunity Commission, and Gade testified before the Senate Health, Education, Labor and Pensions Committee on their priorities and qualifications. The hearing kicks off the Senate confirmation process.

Republicans were largely receptive to Dhillon and Gade throughout the hearing. Their questions focused on wellness programs, creating reasonable pay data forms, and how to encourage employers to hire people with disabilities. Democrats, on the other hand, asked more pointed questions surrounding LGBT protections and the future of the EEOC's litigation.

Sen. Patty Murray (D-Wash.) asked the nominees if they would support the EEOC's current position that laws banning sex discrimination in employment include protections for LGBT people. Both said they personally oppose discrimination based on sexual identity and orientation.

Gade said he is committed to enforcing law as “the courts have written.” Dhillon said she thinks a legislative solution is the most appropriate way to address the issue.

“It sounds wishy-washy to me,” Murray said in reference to Dhillon's answer. Murray added that she appreciated the first part of Dhillon's response, which mentioned her personal stance against discrimination.

Sen. Tammy Baldwin (D-Wis.) also pressed Dhillon to clarify her stance on protections for LGBT people.

“It's critical that the federal government ultimately speak with one voice on how this statute is appropriately interpreted,” Dhillon said.

Sen. Tim Kaine (D-Va.) continued Baldwin's line of questioning. “If someone proposed a vote to scale back the EEOC approach to this type of discrimination, would you support or oppose them?” he asked.

“The courts are wrestling with this statutory interpretation as well,” Dhillon said. “It's easy to give a quick answer, but the issue is too serious. Ideally a legislative solution could resolve this.”

President Donald Trump nominated Dhillon June 29 and Gade Aug. 2, and the committee will eventually decide whether to approve the nominations, which would set up a full Senate vote.

How long that process will take is still unclear. Dhillon and Gade are expected to get the full support of HELP Committee Republicans, but Democrats will likely take a more critical approach.

Pay Data Collection Not Dead

Both Dhillon and Gade committed to finalizing “transparent pay data collection by the EEOC” and to do it within a “reasonable” time period.

Employers with 100 or more workers file EEOC forms that contain data about the sex, race, and ethnicity of its workforce. The EEOC planned to expand the EEO-1 form to include summary pay data to collect information on wage discrimination, but the Office of Management and Budget put the plan on hold Aug. 29, citing concerns about overburdening employers.

If confirmed, Dhillon and Gade will have to come up with a pay data reporting form that employers can get behind or risk facing the same pushback the last form created.

“I would want to work with the career staff to understand what additional data the agency needs to improve the agency's enforcement of the nation's equal pay laws,” Dhillon said. The previous data collection form could have benefited from a more rigorous process of public comment, she said.

EEOC Backlog a Priority

Dhillon and Gade plan to make reducing the EEOC's backlog of cases a priority, they said.

“We owe it to these employees, as well as everyone else involved, to swiftly address their concerns,” Dhillon said in her opening testimony. “Notwithstanding the efforts of many in the agency, the EEOC currently has a substantial backlog of charges—and this situation is not new. It is the sad reality that too often, justice delayed is justice denied.”

The agency's backlog for fiscal year 2016 was about 70,000, according to the EEOC's website. The Trump administration has proposed a slight cut in EEOC funding for 2018. Appropriations bills winding their way through the House and Senate would keep the agency's funding level steady at about $365 million. The EEOC's staffing levels have dropped from 2,505 positions at the end of fiscal 2011 to 2,202 slots at the close of fiscal 2016, indicating funding has long been a problem for the agency.

“We've put considerable time, attention, and strategies into reducing the backlog over the past year—especially over the past nine months,” acting EEOC Chair Victoria Lipnic (R) said in a Sept. 19 email to Bloomberg BNA. “It's been a priority of mine that we get to a manageable and sustainable level, while meeting our statutory obligations and appropriately serving the public. While there is still more work to do—and our district directors deserve a lot of credit here—already we are in a markedly improved situation compared to even a year ago,” she said.

Wellness Regulations to Be Revamped

Wellness programs have been in the spotlight ever since the AARP filed a motion to block the EEOC's regulations on employer wellness programs this year. In his opening remarks, Sen. Lamar Alexander (R-Tenn.) mentioned that wellness program regulations have to be clarified before employers can move forward on other important issues.

“One of the few things that Democrats and Republicans agreed on within the Affordable Care Act was the focus on wellness,” said Alexander, who chairs the HELP committee. “If you're looking for ways to implement those incentives for those lifestyle changes, it's hard to think of a better way than the health insurance offered by employers.”

In 2014, the Obama administration tacked “wellness programs” onto provisions of the Affordable Care Act. Those programs give employers the chance to reduce their employees’ health-care costs by 30 percent if they participate in voluntary health initiatives. Those could range from gym memberships or dietary classes, to medical screenings or reaching a weight goal. Participants who quit smoking, could see health-care costs cut in half.

That same year, the EEOC filed its first lawsuit opposing a wellness program. The agency alleged Orion Energy System had a wellness program that violated aspects of the Americans with Disabilities Act. The EEOC alleged Orion's program, which conditioned health insurance premium discounts on employees submitting confidential medical information, wasn't voluntary, as required under the ADA.

After multiple lawsuits, the commission in 2016 put in place new rules attempting to provide guidance for employers on what incentives they can offer employees and the kind of medical questions an employee could be subject to. However, a federal judge ruled Aug. 22 that the EEOC must clarify those rules and gave the agency until Sept. 21 to provide a status report.

Rewriting those regulations would be a priority for the EEOC going forward, Dhillon said. Gade agreed that wellness is important, but he is concerned with how wellness programs will affect those with disabilities.

“If the wellness incentives are set in a way that disadvantage people with disabilities or disadvantage people because of their genetic information, those would be areas that would be very problematic as the new regulation is eventually rolled out,” Gade said. “That's something that I really look forward to participating in.”

Gade graduated from West Point and was wounded in action in Iraq, which resulted in the amputation of his right leg. He has served on advisory committees for the secretary of veterans affairs and was appointed to the National Council on Disability in 2015. He retired from the Army in 2017 and helped establish the Independence Project, which advocates for veteran empowerment through employment.

Dhillon's most recent position was as executive vice president and general counsel of Burlington Stores Inc. Before that, she was executive vice president and general counsel of J.C. Penney Co. for six years. She previously was a senior vice president and general counsel at US Airways Group Inc. She practiced law at Skadden, Arps, Slate, Meagher & Flom LLP for 13 years before launching her corporate counsel career.

To contact the reporter on this story: Jacquie Lee at jlee1@bna.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bna.com