16:20, September 15 490 0 law.com

2017-09-15 16:20:04
Corporate Friend or Balanced Perspective? EEOC Chair Nominee's Experience Is Debated

Janet Dhillon.

Janet Dhillon, the veteran general counsel nominated to lead the U.S. Equal Employment Opportunity Commission, has backed causes in the U.S. Supreme Court and federal appeals courts that labor advocates said would have limited the ability for workers to challenge discriminatory practices the agency is tasked with enforcing.

Business leaders, meanwhile, are welcoming a would-be EEOC leader whose long background in corporate legal departments would provide a perspective “from the trenches” of the private sector—potentially shifting the priorities established under the Obama administration.

In advance of Dhillon’s U.S. Senate confirmation hearing on Sept. 19, a coalition of women and worker’s rights groups said Dhillon’s role in the Retail Litigation Center, paired with her experience as a top lawyer at several major corporations, make her a questionable choice to lead the EEOC and stand up for workers. Dhillon most recently served as general counsel to New Jersey-based Burlington Stores Inc.

“It’s not just that her career has been spent defending employers and corporations. It’s that she created this organization solely dedicated to advancing those interests,” said Emily Martin, general counsel to the National Women’s Law Center. “Certainly, it is a concern that her background indicates skepticism about strong interpretations of anti-discrimination laws generally.”

Leaders of the EEOC come from a variety of backgrounds—Jenny Yang, a chairwoman during the Obama administration, was a partner at the plaintiffs firm Cohen Milstein Sellers & Toll. One President George W. Bush chair, Cari Dominguez, was a partner in the Washington executive search firm Heidrick & Struggles. Dhillon, before leading the 10-lawyer team at Burlington, was general counsel to J.C. Penney Corp. and US Airways Group Inc.

A group led by the National Women’s Law Center and the National Partnership for Women & Families said in a letter to a U.S. Senate committee that they “are concerned that the nominee to lead the federal agency that promotes equal opportunity for employees has no experience doing so, and instead has spent her career advancing the interests of, and defending, large corporate employers in sectors where women face low pay and persistent discrimination.”

General counsels and other business leaders say that the employment community would welcome experience like Dhillon’s to the agency and it would be valuable.

“General counsel of companies are called upon to evaluate whether claims of discrimination are real or not. That’s what we do,” Michael Brizel, former general counsel of Saks Inc. and now GC at Fresh Direct, told Corporate Counsel in June. “I think she would bring a great skill set to the EEOC in being able to decide whether to take cases.”

Under new leadership, the EEOC could be poised for change. Obama-era leaders were active in pursuing systemic investigations aimed at widespread discrimination, particularly gender and sexual orientation, in companies. Systemic practices target high-impact cases that address patterns that have broad reach across an industry.

Business advocates want a more business-friendly commission to reconsider some of the Obama administration’s priorities. Already, a regulation was scuttled that would have required revisions to the Employer Information Report, or the EEO-1, an effort to help close the gender pay gap by requiring employers to provide aggregate compensation data and hours for all employees.

Martin of the National Women’s Law Center said the EEOC will have to decide what to do about the pay data issue and she has stressed that Senate leaders question Dhillon and fellow nominee Daniel Gadeon what they believe should be the path forward.

‘Balanced Interpretation’

Vicki Shabo, vice president of the National Partnership for Women & Families, said she hoped pay-data collection would become a focus of the confirmation hearing next week. Members of the Senate Health, Education, Labor and Pensions Committee should press Dhillon about issues related to low-wage workers, minorities and the protection of workers regardless of their immigration status.

“An emphasis on systemic enforcement has been embraced by both parties,” Shabo said. “It would be a shame to see it subside.”

Dhillon served as the Burlington general counsel since 2015. The spouse of a Trump White House deputy counsel, Dhillon spent five years at the US Airways legal department, where she served as general counsel and chief compliance officer.

In that role, she directed the airline’s corporate governance and legal affairs, including litigation, commercial transactions and regulatory matters. The airline experienced layoffs during that time. Dhillon served as general counsel from 2009 to 2015 at Texas-based J.C. Penney, where she also faced company layoffs and store closures.

Her role at the Retail Litigation Center, or RLC, drew the most criticism from pro-worker advocacy groups. The retail organization has been a leading voice for the industry in appeals in the Supreme Court and lower courts since 2010. Those cases have included disputes that involved limited employer liability and anti-discrimination statutes that the EEOC enforces.

Dhillon served as the first chair of the board of directors and recently as president. The group released a statement congratulating her when she was nominated to the commission earlier this year.

“As the top legal officer of multiple important job creators and the former president of the RLC, Janet thoroughly grasps the importance of consistent and balanced interpretation of the governing law by the executive branch,” Deborah White, the Retail Litigation Center president, said in an email to The National Law Journal. “Janet is an exceptional choice to lead the commission in its mission as she understands the impact and opportunity that retail provides to our American workforce.”

During Dhillon’s tenure at the retail center, she authored and co-authored amicus briefs to the Supreme Court and Court of Appeals, according to the coalition of advocacy groups.

Those cases included, Wal-Mart Stores v. Dukes, in which the retail giant challenged the power of employees to form a class action to fight alleged discriminatory practices. A divided Supreme Court ruled in favor of Wal-Mart Stores Inc. in concluding that the class was improperly formed. In Vance v. Ball State University, where the retail center supported the employer, the justices said a company should not be liable when a worker is harassed by a supervisor who lacks hiring and firing power. The 5-4 decision created higher standards for supervisory liability.

The center also opined on the side of employers against the EEOC. In Mach Mining v. EEOC, the trade association’s amicus brief accused EEOC investigators of seeking a “favorable headline.” The Supreme Court, ruling 9-0, reversed a lower court decision and held that conciliation efforts by the EEOC are reviewable.

Litigation Against Burlington

No major company is immune from labor and employment matters, both internal and those that reach administrative agencies and the courts. As general counsel at Burlington, Dhillon would have been positioned to oversee litigation and have a voice in any resolution that affected the company’s bottom line.

Federal lawsuits against Burlington, during Dhillon’s tenure there, presented a range of issues for outside counsel, including workers accusing managers of racism and retaliation, claims of inflammatory racist comments in Texas to a case in Indiana where a woman claims she complained after being called a “stupid Russian.”

In a recent U.S. Securities and Exchange Commission filing, Burlington Stores acknowledged—as it routinely has done before—the company has been named in class or collective actions alleging violations of federal and state wage-and-hour and other statues. At least three cases filed in federal court remain open against Burlington. Several matters settled in recent years.

Dhillon and her fellow EEOC nominee Gade, an Iraq war veteran who long has criticized disability pay for wounded veterans, will appear together Tuesday in the Senate.

A spokeswoman for Sen. Lamar Alexander, R-Tennessee, chairman of the labor committee, said in an email statement: “Sen. Alexander expects a fair nomination process for Ms. Dhillon and, if confirmed, is hopeful she will help restore the EEOC to its core mission of protecting American workers from discrimination.”