By: Haley Fisk
Republican commissioner of the US Equal Employment Opportunity Commission (EEOC) Janet Dhillon announced her resignation from EEOC, with her last day in service being November 18, 2022. Before moving to her post as a commissioner, Dhillon served as the chair of EEOC during the Trump administration beginning in 2019. Dhillon was replaced as Chair by Charlotte Burrows, a Democrat appointed by Joe Biden in 2021.
President Biden’s nominee for the vacant commissioner position is Kalpana Kotagal, a Democrat who is a civil rights attorney at Cohen Milstein Sellers & Toll PLLC. The nomination of Kotagal has yet to advance to the full Senate. The nomination stalled due to an 11-11 vote in the Senate Labor Committee. This state of deadlock in the Committee can be resolved by a procedural vote in the full Senate, which is controlled by Democratic Majority Leader Chuck Schumer. It is unknown at this time when Schumer will act on Kotagal’s nomination.
An important aspect of Kotagal’s nomination is how Kotagal’s membership in the Commission will cause a shift in EEOC. Currently, the EEOC has a 3-2 Republican majority. With Dhillon’s resignation, EEOC will have an even 2-2 partisan split. If Kotagal’s nomination is approved, EEOC will have a 3-2 Democratic majority.
The potential for a majority shift in EEOC has caused some concern among industry groups. Specifically, there is concern about EEOC collecting employer pay data. This was previously done through EEOC’s use of EEO-1 Component 2. Use of Component 2 was stopped in 2020 after the EEOC stated the burden imposed on employers outweighed the utility of the pay data. However, now that a Democratic majority in EEOC looms, there is a chance that Component 2 or some similar data collection will be reinstated.
