EEOC’s Yang Opts to Stay After Agency Term Expires

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By Kevin McGowan

EEOC Commissioner Jenny Yang (D) will stay at the agency after her term ends July 1, exercising a legal option that allows commissioners to remain for at least 60 days after their terms formally expire.

President Donald Trump beginning July 1 could nominate two Republican appointees to the five-member commission, where the Democrats currently hold a 3-1 majority. Once confirmed by the Senate, such appointees would swing the commission to a 3-2 GOP majority.

Some employer representatives have expressed frustration with the administration’s failure so far to nominate anyone for the EEOC’s general counsel post as well as for a commissioner slot that has been open since January.

Yang joined the EEOC in May 2013, and President Barack Obama named her the agency’s chair in September 2014. She held that leadership post until Jan. 25, when Trump named Victoria Lipnic (R) as acting EEOC chair.

Yang plans to stay until the end of August, she told Bloomberg BNA June 27. She will be working on ways to continue the work the EEOC began during her tenure, Yang said.

An EEOC commissioner can stay on even longer than 60 days after her term expires if the president nominates a replacement during that period. Under those circumstances, Title VII of the 1964 Civil Rights Act provides the commissioner can remain until the Senate confirms her successor or it adjourns for the year, whichever happens first.

Even if President Trump submits nominees for the EEOC vacancies soon, Senate votes are unlikely until after the August recess.

Concerns About Pace

Business groups and attorneys representing employers are eager for the administration to begin nominating candidates for the EEOC positions.

The U.S. Chamber of Commerce is “a little frustrated” the administration hasn’t moved yet on the EEOC vacancies, said Randy Johnson, the Chamber’s senior vice president for labor, immigration, and employee benefits.

“We’d like to see those Republican seats filled,” Johnson told Bloomberg BNA June 27.

The agency general counsel post, which has been open since Jan. 20, might be more of “a lost opportunity” than the two EEOC seats, said James Plunkett, senior government relations counsel for Ogletree Deakins Nash Smoak & Stewart in Washington.

The general counsel has broad discretion to decide whom the EEOC sues and establishes the “tone and tenor” of the agency’s pre-lawsuit conciliation or settlement efforts, Plunkett told Bloomberg BNA June 21.

Employer representatives hope that a GOP-majority EEOC would curb the general counsel’s delegated authority by requiring more commission votes on when to file agency lawsuits.

They also hope a “flipped” EEOC with a Republican majority would scrap the commission’s plan to begin collecting many employers’ compensation data in a revised EEO-1 form, Plunkett said.

But if the administration takes its time in filling the open commissioner seats, that could put employers in a bind. The revised EEO-1 form containing the pay data is due on March 31, 2018.

A GOP-majority EEOC that could reconsider the pay data reporting requirement might not be in place until late 2017. Employers by then would be well into “getting their ducks in a row” to comply with the revised EEO-1 form, Plunkett said.

General Counsel First?

The administration has provided few clues about who’s being considered for the EEOC posts or when nominations might be expected, according to employer-side sources who spoke to Bloomberg BNA.

Sources in May said Washington management lawyers Lawrence Lorber and Esther Lander were among those the White House was considering for EEOC general counsel. Lorber no longer is in the running, according to a source with knowledge of the matter.

The administration might be closer to a nomination for EEOC general counsel than for either commissioner seat, according to employer-side sources.

The Trump administration’s pace in filling the EEOC vacancies, while perhaps frustrating to some, may not be that unusual in historical terms.

President Obama in his first year didn’t nominate a new EEOC chair until July 2009 and nominated a new EEOC general counsel in October 2009. The Senate tied up his nominations, so Obama in March 2010 made recess appointments to put in place his choices for three EEOC commissioners and general counsel.

Lipnic, the current EEOC acting chair, was among the Obama recess nominees. The Senate twice confirmed her for full terms as an EEOC commissioner, and her current term runs until July 1, 2020.

Some employer representatives would like to see the administration name Lipnic as the agency’s permanent chair. But Trump could designate one of his future EEOC nominees as agency chair, returning Lipnic to her commissioner’s role.

The EEOC’s current members are Lipnic, Yang, and commissioners Chai Feldblum (D) and Charlotte Burrows (D).

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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