EEOC nominees Janet Dhillon and Daniel Gade at their confirmation hearing in September in Washington. EEOC nominees Janet Dhillon and Daniel Gade at their confirmation hearing in September in Washington. Credit: Diego M. Radzinschi/ ALM

The acting chairwoman of the U.S. Equal Employment Opportunity Commission on Thursday suggested the agency under a Republican majority may not continue to push for pay data collection efforts that target the wage gap, a day after a lawsuit slammed a decision by the Trump administration to scuttle a reporting requirement.

Victoria Lipnic, leading the EEOC until a permanent chairwoman is confirmed, stressed on a Federalist Society panel in Washington that she has been outnumbered as the sole Republican on the commission. “It takes votes to do things,” Lipnic said.

The makeup of the EEOC is poised to change after the likely confirmation of two Republican nominees—chairwoman nominee Janet Dhillon, a former general counsel at Burlington Stores, and West Point professor Daniel Gade. Other labor leaders speaking at the Federalist Society’s annual conference included U.S. Labor Secretary Alexander Acosta, National Labor Relations Board chairman Philip Miscimarra and acting Labor Department solicitor Nicholas Geale.

The National Women’s Law Center and Labor Council for Latin American Advancement on Wednesday sued the Office of Management and Budget, the EEOC and various government officials. The complaint challenged a decision in August to stop an agency measure that would have required employers with 100 or more employees to report pay for their workers by race, gender and ethnicity on the annual EEO-1 report.

The report is required for all employers with 50 or more employees and is used to enforce federal discrimination laws and the additional requirements were intended to provide transparency to address wage inequities. Advocacy groups contend the revised rule was essential for government leaders to address pay equity for women and minorities.

Lipnic said the panel with a new Republican makeup could consider the pay data collection tool but suggested they had discretion to leave it on the table.

“Once we have a complement of new commissioners what will happen with some version—or no version—of EEO-1 pay data collection is something we’ll spend a lot of time on,” she said.

The lawsuit filed in the U.S. District Court for the District of Columbia suggested that killing the measure without public input was illegal and that Trump budget officials faced pressure from special interest groups to halt the requirement. The U.S. Chamber of Commerce filed a petition in February urging the OMB to reject the EEOC’s Obama-era revisions to the reporting rule.

Lipnic suggested that proper rulemaking was not originally put in place to add the new reporting requirements. She also said she voted against the proposal at the time. “We seem to have come full circle,” she said.

Lipnic said the EEOC under Republican control must also face a dispute over the agency’s rules for corporate wellness programs, which were challenged and ruled unlawful by a federal judge earlier this year. The new EEOC will also look at sexual harassment prevention programs, she said.

Acosta and the other labor leaders on Thursday, speaking to a largely conservative audience at the Federalist Society meeting, bemoaned “too much regulation” as holding back U.S. companies.

“President Trump has committed to roll back regulations that inhibit job creation and impose costs that exceed benefits,” Acosta said.

He trumpeted the Labor Department rescinding guidance on what constitutes a joint employer relationship, an issue pending before the U.S. Court of Appeals for the D.C. Circuit. The appeals court is weighing a National Labor Relations Board decision that expanded the scope of the employment relationship.


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