The Trump Administration Gutted the EEOC

The Trump Administration Gutted the EEOC

The Trump Administration Gutted the EEOC

An inside account of how Janet Dhillon has hollowed out America’s only workplace civil rights watchdog.

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When Donald Trump took office in 2017, he installed a number of pro-business appointees to lead federal agencies tasked with protecting workers’ rights. But for the first two years of his administration, things continued more or less as normal at the Equal Employment Opportunity Commission, the country’s sole workplace civil rights watchdog. Ami Sanghvi, now a lawyer at the Marek Law Firm, started as a trial attorney at the EEOC just after Barack Obama became president. Yet even during Trump’s first two years, she said, the agency was able “to do pretty great work.”

Then, in May 2019, corporate lawyer Janet Dhillon was sworn in as Trump’s choice for the EEOC’s chair, and Sanghvi soon found the kinds of cases she could pursue restricted. It’s part of why she decided to leave the commission and go into private practice in January 2020.

The change in approach when Dhillon took over “was like 180 degrees,” said one former EEOC official employed at the agency at the time. He recalled describing a big victory—a multimillion-dollar resolution in a difficult case—to her. “It was met with a cold stare and dead silence.”

Dhillon has since pushed through a number of changes that two people currently at the EEOC and six former EEOC employees, as well as many in the civil rights community, warn will bring the gears of justice at the commission grinding nearly to a halt. And while, as president, Joe Biden will be able to quickly reverse many of Trump’s actions, those made at the EEOC could last well into his administration.

“We need stronger enforcement, not weaker,” said Jenny Yang, who served as the EEOC’s chair from 2013 to 2018 and is now a senior fellow at the Urban Institute. Dhillon’s changes, she added, are “designed to weaken enforcement very intentionally.”

The clearest impact of Dhillon’s agenda has been on the pace of litigation. The EEOC filed just 93 lawsuits in fiscal year 2020, compared with 144 the year before and 199 in fiscal year 2018. And while the pandemic would have reduced the number of cases in any event, two sources within the commission attributed some of the drop directly to Dhillon’s actions.

With the EEOC pursuing fewer cases, there are fewer people getting timely justice. “If you were fired for some discriminatory reason, if you left your job because of sexual harassment, that is usually an emergency in your life,” said Emily Martin, vice president for workplace justice at the National Women’s Law Center. “Further slowing those processes means that the people who are really depending on the EEOC to help solve this emergency in their life are going to be out of luck.” And those without the means to hire a lawyer could have no recourse at all.

“This is a crucial time for the EEOC. We’re at a historic moment,” said Gaylynn Burroughs, senior policy counsel at the Leadership Conference on Civil and Human Rights. The Me Too movement shined a bright light on sexual harassment, and the Black Lives Matter protests reignited a conversation about racial discrimination. “This is where the EEOC’s mission is most important. So the idea that they could be hamstringing themselves is very concerning.”

Kimberly Smith-Brown, an EEOC spokeswoman who responded to queries for this article (and has since left the job), rejected the charge that Dhillon has undermined the agency. “The EEOC’s ability to fulfill its mission to prevent and remedy employment discrimination has not been hampered,” she said.

Prior to arriving at the EEOC, Dhillon spent her entire career in the private sector. After graduating from law school, she practiced at the corporate law firm Skadden, Arps, Slate, Meagher & Flom for 13 years, then served as general counsel for US Airways Group, J.C. Penney, and Burlington Stores.

In April 2019, after Dhillon’s nomination to the EEOC, a coalition of 30 business groups, including the National Federation of Independent Business, the National Restaurant Association, and the US Chamber of Commerce, wrote a letter to Senate majority leader Mitch McConnell urging him to get her confirmed. The letter included a list of items the signers wanted to see enacted at the agency, including easing a requirement that businesses report pay data by race and gender. Years earlier, the Chamber had argued that the EEOC should try harder to resolve cases before filing litigation and should also narrow who has the authority to green-light lawsuits.

Democratic Senator Patty Murray opposed Dhillon’s nomination from the start. “I really felt her experience and priorities ran contrary to the mission of the EEOC,” she told me. “Unfortunately, she has led the EEOC the same way that she came to it.”

Not long after she took over the agency, Dhillon issued a list of her priorities, including that “litigation is truly a last resort.” Seyfarth Shaw, a corporate law firm that represents the Chamber of Commerce, noted at the time that this appeared “to signal a shift away from the Commission’s litigation efforts,” a development it called “welcome and long-awaited.”

Seyfarth Shaw was right. Under Dhillon, the EEOC “is really trying to implement the Chamber of Commerce agenda,” said David Lopez, who served as the commission’s general counsel from 2010 to 2016 and is now co-dean of Rutgers Law School. “I never thought I’d say this in the context of the EEOC, but it almost becomes a case of industry capture by the business community.”

Advocates for workers have criticized the way other worker-focused agencies, including the Department of Labor and the National Labor Relations Board, have reflected the ideology of the Trump administration. But the EEOC is politically independent and has historically remained above the fray. Even Republican chairs, such as Obama nominee Victoria Lipnic and President George W. Bush’s nominees, Naomi Earp and Cari Dominguez, “were enforcing the law,” Lopez said. “They supported the work of the litigation units in the field.”

Dhillon has also departed from history in the way that she’s pursued her agenda: hastily and with little input from others. She announced two nationwide pilot programs to her fellow commissioners right before holiday weekends last year, and one was implemented at the start of the next workweek, according to a current EEOC official. Commissioner Charlotte Burrows said in a statement at the time that she and Lipnic, then the only other commissioner, weren’t provided “so much as a courtesy copy” of the pilots before they were enacted.

Smith-Brown disputed this, saying, “Commissioners and their staff receive ample opportunity to review matters put to the Commission for a vote.” But the pilot programs never received a vote and were instead instituted unilaterally by Dhillon. One of them made changes to the commission’s mediation process—an early, voluntary settlement process for narrower cases—while the other changed its conciliation process, a mandatory procedure the EEOC undertakes to try to resolve cases before suing employers in court. Both programs were rolled out on a nationwide basis immediately, and even before the conciliation pilot had ended and its results were analyzed, Dhillon issued a notice of proposed rulemaking (NPRM) to make similar, but permanent, changes to the conciliation process. “The fact that they didn’t even wait for results shows that the chair doesn’t really care about the results,” said David Wachtel, a partner at Trister, Ross, Schadler & Gold and a member of the National Employment Lawyers Association. “She just wants this to happen.”

Stakeholders in the civil rights community, such as the National Women’s Law Center and the Leadership Conference on Civil and Human Rights, say they hadn’t been consulted about the pilot programs or promised a role in evaluating them. They haven’t even been assured that they’ll be told what the outcomes are.

That contrasts starkly with, to cite one example, the process the agency followed during the Obama administration to determine whether and how it should collect pay data by gender and race. According to a former EEOC official who was there at the time, the agency conducted “extensive” studies to determine what data to collect, what should be done with it afterward, and whether it should be collected at all. Commissioners also solicited and incorporated input from the agency’s career staff. “I don’t see that happening here,” the official said.

“I’ve just never seen what I would call a steamrolling of major changes like this,” said Carolyn Wheeler, senior counsel at Katz, Marshall & Banks, who spent over three decades at the EEOC, including as assistant general counsel. While incoming chairs usually sought to make some changes, they “did not seem to think they should just wave a wand and have it be the way they thought.”

One of the first changes at the EEOC after Dhillon’s appointment was a pause in the consideration of cases arguing that discrimination on the basis of sexual orientation or gender identity is illegal under Title VII of the Civil Rights Act of 1964, which bans sex discrimination, said a former EEOC official who was there at the time. While Smith-Brown denied that Dhillon gave such an instruction herself, she did note that EEOC general counsel Sharon Gustafson has that power, though she did not respond to a question as to whether Gustafson issued a directive.

The EEOC had been bringing such cases since 2015. But in 2019, Trump’s Department of Justice filed a brief in the Supreme Court case Bostock v. Clayton County arguing that Title VII does not cover sexual orientation, contrary to the EEOC’s position at the time. After Dhillon took over, attorneys were told that until the Supreme Court made its decision in Bostock, they wouldn’t be given the authority to pursue litigation along those lines. The court ultimately ruled in favor of the plaintiffs, affirming the EEOC’s earlier position, but a current EEOC official noted that the commissioners still have not voted to file a single sexual orientation discrimination case.

Dhillon also turned her attention to the measure to collect payroll data by gender and race. In 2016, the EEOC announced that it would collect and publish aggregated data on these pay gaps. But when the Trump administration came in, the Office of Management and Budget abruptly halted it. A court later forced the EEOC to collect that data for two years. Yet Dhillon decided not to seek a renewal of that authority, stopping the effort dead in its tracks.

Dhillon also made a significant change in how the agency files lawsuits. Historically, the EEOC’s lawyers and general counsel have been able to decide on their own whether to bring most lawsuits against employers; the commissioners voted only on the most controversial or costly ones. But one of the first things Dhillon sought when she assumed her role was to have the entire commission vote on whether to bring litigation in every single case. When that generated heated opposition, she announced instead that she would review nearly every case herself and decide whether the full commission should vote on it. That made it harder to get more complex cases approved, particularly those seeking to create systemic change, according to a current EEOC regional attorney and three former officials, leading to a reduction not only in the number of cases but also in their size and scope.

However, after Biden was elected president—all but ensuring that he would nominate a new, less conservative chair who would hold the same power to review cases that Dhillon gave herself—she reversed course and moved again to change the process so that the full commission would vote on every single case, according to two current EEOC employees. During internal negotiations, the rule was altered such that every case will come before the entire commission, but routine cases will get a full vote only if a majority of the commissioners requests one, according to a current EEOC official. That means the current Republican majority on the commission will have the power to call a vote and shoot down cases it doesn’t like.

The result, according to a long-serving EEOC attorney, is that more litigation is getting voted down than ever before. The current EEOC official is confident that the conservative commissioners won’t decide in favor of any sexual orientation discrimination cases. Gustafson even determined that being denied leave for a disability, a form of discrimination previously recognized by the EEOC, is permissible under the Americans With Disabilities Act and that no more of those cases would be brought, according to a former EEOC official with direct knowledge of the decision. And sexual assault cases are being met with skepticism toward the claimant’s story, he added.

The agency disputes the latter claim. “It is absurd to suggest that the Chair does not support the EEOC’s role in combatting sexual harassment,” Smith-Brown said, noting that the agency filed 57 sexual harassment suits in the past two years.

In the cases that Dhillon has voted on publicly, she voted against a number of disability and age discrimination cases. In one case she voted against, African American employees at a manufacturing plant alleged racial harassment that included a white employee dangling a noose in front of a Black coworker. In another, a Chipotle manager said she was fired after being sexually assaulted at work twice in one day. Dhillon was outvoted in both of these cases, but that was before the arrival of two new Republican commissioners, who have so far voted in lockstep with her.

Typically, commissioners review and vote on 20 to 30 cases in a year; under Dhillon’s changes, they may have to look at hundreds. “The impact on the staff is enormous,” Wheeler said. The changes could delay for months cases that would have normally breezed through. Worse, EEOC staff may decide it’s not even worth trying to get litigation approved if the Republican commissioners continually vote it down and may try to settle cases instead—though without the threat of litigation, the settlement amounts will almost certainly drop.

It was precisely this logjam that President Bill Clinton’s administration sought to address when it allowed the EEOC’s regional attorneys to make litigation decisions about routine cases, restricting the commissioners to reviewing litigation only if it was controversial, would potentially make new law, or involved a large class of people. Lopez was there before the Clinton-era change was made. “It was not uncommon [then] for cases to sit for six, seven, eight months” before the commission decided to take them, he said. That meant many claimants decided to settle for low amounts or hire their own attorneys to pursue the cases.

Dhillon’s policy also means that commissioners who are not well versed in the cases will make determinations about them. “You get this crazyland world where you have…bureaucrats in Washington second-guessing factual determinations by people who have actually interviewed the witnesses and know the courts they’re dealing with,” Lopez said.

One of Dhillon’s most significant changes came through her mediation pilot program. Before, certain kinds of complaints—ones that were potentially larger and more systemic—were exempt from the mediation process, which seeks to reach a settlement before further investigation. The exemption ensured that complaints that might uncover larger, more widespread problems received a thorough inquiry. But now, if both parties agree, those cases too are funneled to mediation before an investigation takes place. A sign-off from headquarters can allow a case to bypass mediation, but to date that’s happened rarely or never, according to a current official. When I asked the EEOC press office for data on the total number of cases that have been sent to mediation due to the pilot program, the response was unhelpful: “We will continually be evaluating the results of the mediation pilot, but will not be sharing any metrics at this time.”

As a result, important cases can now wither or fade away entirely in the mediation process. In mediation, the EEOC representative must remain neutral, not act as an advocate for the claimant. Many claimants will go into it facing an employer represented by a big law firm, without any legal representation themselves. Most people will therefore likely take whatever money is offered without knowing they might be able to fight for more. “You’re going to have just extreme power imbalances,” Lopez warned. Worse, many of the settlements are kept secret through nondisclosure agreements, and employers can insert no-hire clauses that bar claimants from ever being hired by them again.

Mediation also does not allow for investigating whether other people were discriminated against by the same employer, nor does it allow requiring large-scale changes to root out discrimination. If all cases enter this process, many that could have uncovered abuses on a wider scale will instead remain narrow. Had the EEOC case against Abercrombie & Fitch for refusing to hire someone who wears a hijab gone into mediation instead, it likely wouldn’t have resulted in a Supreme Court decision affirming the right to an accommodation for religious clothing for all, Lopez said. The woman at the center of the PBS documentary Rape on the Night Shift, Erika Morales—a janitor who spoke up about the sexual harassment and assault she experienced at the hands of her supervisor—likely wouldn’t have been able to pursue a larger case if she had been pushed into mediation. Instead, the EEOC investigated her claim and discovered 20 more women at the same workplace who’d been similarly harassed and assaulted.

“Sending virtually every claim to mediation, regardless of the scope or severity of the discrimination at issue, would be a grave injustice and a violation of EEOC’s responsibility to enforce the law,” Burrows, the EEOC commissioner, said in a statement. There aren’t even enough mediators to handle so many new cases: Dhillon said she wasn’t going to hire any last year despite the increase in workload.

Dhillon’s pilot program was set to expire in early January, but she extended it until September 30. The move is “pernicious,” said an EEOC regional attorney, and “will be an additional stranglehold on litigation.”

After the EEOC investigates a claim and finds that an employer probably broke antidiscrimination laws, it enters conciliation, a mandatory discussion with the employer to try to come to an agreement before the commission pursues a lawsuit. Diane King, a labor-side employment lawyer at King & Greisen in Denver, has gone through the process many times. Before Dhillon’s conciliation pilot program began, all of the parties—King, her client, the EEOC investigator, and the employer—would gather and discuss the case and how it might be resolved without litigation. Employers took it seriously, King said. “A lot of those cases did settle.”

But this past year, when she got to that step in one of her cases, she found the process had changed without notice. Instead of a meeting with all of the parties, the EEOC investigator simply acted as a go-between, and the negotiation took place in “a black box,” King said.

Her client in the case is a woman who worked for a water utility—a nontraditional job for women—for about five years before being sexually harassed so much “she basically had a breakdown,” King said. The woman couldn’t return to work and lost, in King’s estimation, hundreds of thousands of dollars in foregone wages. She had to sell her house and is currently couch-surfing while she finds somewhere to live. She hasn’t been able to maintain another job since.

The employer made “a really bad” offer, King said: $20,000 for years of harassment. The EEOC investigator urged her to accept it. King refused. So the case will now likely go to litigation, the outcome conciliation is meant to avoid. Her client has already been waiting four years to get some justice. Now she’ll have to wait even longer.

King would rather settle before a case goes to litigation, a process that “uses so much resources on both sides,” she said. But she felt that the new conciliation process made reaching a settlement even harder. Dhillon’s pilot program has “been just a colossal failure,” King said.

Earlier, the EEOC had won a significant victory for its conciliation process. In 2015, the Supreme Court ruled unanimously in the EEOC’s favor in a case called Mach Mining LLC v. Equal Employment Opportunity Commission. After receiving a complaint of gender discrimination, the EEOC found that the mining company had never hired a woman for a mining position. But when it brought a lawsuit against Mach Mining, the company fought back by saying the EEOC hadn’t adequately tried to conciliate the case.

Before Mach Mining, “every single case” would end up in a similar fight over whether the EEOC had tried enough to conciliate, rather than on the merits of the case, said Lopez, who was at the commission at the time. “It almost felt like malpractice if they didn’t try to challenge the EEOC’s conciliation.”

The EEOC fought the Mach Mining case on those procedural grounds for four years before getting the Supreme Court decision and eventually securing $4.25 million for female applicants. But the upside was the court found that there were no hard-and-fast rules for how the EEOC had to conciliate, which put an end to those fights over procedure.

Now, Dhillon is undoing that win. The Retail Litigation Center, a pro-business group she helped found, had filed a friend-of-the-court brief siding with Mach Mining in the Supreme Court case. And from her current perch in the EEOC, not only has she decided to impose conciliation rules, but she’s gone even further. Under her pilot program, EEOC investigators are required to give an employer virtually all of the information they used to determine that it broke the law, including the EEOC’s legal theory of the case, as well as any potentially exculpatory evidence, including anything that “raised doubt” about whether discrimination occurred. Beyond potentially violating attorney-client privilege, “we’re turning over things that really border on attorney work product,” which is typically protected from disclosure in any lawsuit, a long-serving attorney at the EEOC said.

“This is the EEOC snatching defeat from the jaws of victory and saying, ‘Let’s tie our own hands,’” Martin observed.

This has serious consequences for those seeking justice through the EEOC. It’s harder to get “a good result for the employee,” Martin said, because employers have “greater leverage without any comparable leg up for the employee.” With all of this new information, employers can be much more confident about finding a minimum amount that can make the case go away. And if they don’t settle, “employers will have this huge leg up in the eventual lawsuit,” Wachtel said.

Another important change to the conciliation process that has yet to be made public, which the EEOC spokeswoman and sources inside the agency confirmed to The Nation, is the institution of limits on the damages investigators can seek in conciliation without approval from headquarters. The amount of money the EEOC can ask for is already quite low: In 1991, Congress imposed caps on damages (for the largest employers, they can come to only $300,000), and those figures have never been updated. Now, above a certain percentage of those potential damages, an investigator has to get approval from the regional office; to get the full amount, the investigator has to go to headquarters. Smith-Brown confirmed the change, saying that the pilot program “adds a requirement that conciliation offers be approved by the appropriate level of management…before the offers are shared with employers” and noting that the level of approval required increases with the size of the damages. “This is appropriate,” she added; “larger cases should have more oversight.”

But this incentivizes investigators to seek lower amounts in conciliation to avoid having to run requests up the flagpole. And making the case to headquarters requires even more time. “There’s no question that would slow things down,” Sanghvi said. She noted that during her tenure at the EEOC, she never saw headquarters involved with approving how much investigators asked for in damages. “The level of second-guessing is crazy,” Lopez said; determining what damages to seek “are really ground-level decisions,” based on the level of emotional distress a claimant has experienced and how a jury might evaluate the claimant’s and the employer’s conduct. But the new caps apply to all cases, no matter how severe the wrongdoing.

Before the pilot program ended, Dhillon proposed making permanent changes to the conciliation process through regulation. Her original proposal took most of the pilot program’s changes and went further, requiring investigators to unveil the names of witnesses, even those who wished to remain anonymous and who may still be working for the employer. “You have to have witnesses in these cases,” King noted. “You rarely have smoking-gun documents,” so their testimony is crucial. But “once the word gets out that their confidentiality is not protected by the EEOC, I can’t imagine they’re going to get near it.” Workers know that retaliation is a real threat. The EEOC consistently receives more retaliation claims than any other kind.

In last-minute negotiations over the final version of Dhillon’s NPRM, this requirement was dropped, as was the requirement that investigators hand over privileged information, according to a current EEOC official. But investigators will still have to give employers a written summary of the facts that led them to believe discrimination occurred and the legal basis for potential litigation, as well as an explanation of what kind and size of case it might be. That risks protracting the process of determining whether illegal discrimination occurred and hanging up a case instead over arguments about whether the EEOC followed the right procedure, similar to what it faced before Mach Mining. “It will lead to expensive and needless litigation,” Burrows said during the final debate over the rule, which “will divert limited, precious resources away from fighting discrimination.”

The argument in favor of creating the new rule is that it will entice more employers to enter conciliation and lead to more settlements. But there’s little evidence to back that up. The EEOC recently completed an internal analysis of hundreds of failed conciliations and found the two primary reasons they didn’t work were because employers declined to participate and because the parties couldn’t agree on a monetary figure. And, of course, Dhillon pushed forward with the permanent rule before her pilot program could be analyzed.

The conciliation pilot is ongoing: Dhillon unilaterally extended it as it was about to expire in November. That, however, can be easily reversed by a new chair. But the final NPRM is “really going to tie our hands,” the regional attorney said. Already overworked investigators will have less time to devote to uncovering discrimination. Operating under Dhillon’s pilot program, many are doing everything they can to get justice for a claimant without finding cause so they don’t have to go through the new processes, according to the current EEOC official. The changes mean that “we’re not going to win in conciliation,” King said. “It gives you one less tool.”

Even with the new demands placed on EEOC staff, their ranks have thinned. There were 1,939 full-time employees in fiscal year 2020, a decrease from 2,060 in 2019 and the lowest level since 1980, even as the country’s workforce has grown. Despite the agency receiving budget increases—the first since 2014—in both 2018 and 2020, Dhillon made it clear she didn’t want to spend money on hiring staff, according to a current EEOC official. She has been “very sparing” in spending money to hire the staffers that carry out litigation, the regional attorney said. “It’s been a trickle.” She is also “very intentionally starving” the general counsel’s office, according to a former EEOC official.

But that’s not what Congress instructed. “Congress allocates money. We’re the power of the purse,” said Murray, the Democratic senator from Washington state. She noted that Congress gave the EEOC more money in the wake of the Me Too movement so it could better address workplace harassment. “If you have someone like Chair Dhillon…using it for something else, she’s skirting what Congress, which is the will of the people, has asked her to do.”

Smith-Brown pointed out that the agency hired more than 300 employees in fiscal years 2019 and 2020 combined, with 131 in “front-line” positions. “Chair Dhillon has committed resources on increasing front-line staff across the agency whenever possible,” she said, but added that increases in other fixed costs were higher than the additional money from Congress, leaving few extra resources for personnel.

A failure to hire enough attorneys and investigators winnows the agency’s capacity. When Dhillon visited a field office and an attorney told her they were having a hard time litigating cases with so little staff, she responded that they should file fewer cases, according to a former EEOC official.

Lopez sees a clear pattern in Dhillon’s changes: “The bottom line is they don’t want to litigate.” That would take the EEOC back to its inception, before Congress gave it litigation authority in 1972, recognizing that the agency wasn’t effective without it. Without a serious threat that the EEOC will sue, the deterrent effect disappears. “The agency has no real credibility in anything it does unless the employer community believes it will litigate,” Wheeler said. The changes are “certainly affecting our ability to litigate in the public interest and to go after discriminating employers,” the long-serving attorney at the EEOC said. “It’s already slowing down.”

As a federal agency, the EEOC can pursue cases that private attorneys won’t handle, because it doesn’t have to worry about how much money it can win in a settlement or trial. That benefits low-income workers, who often can’t get private legal representation, and it also allows the EEOC to pursue cases that it might not win but that could still have important ramifications. Unlike private attorneys, the EEOC can demand that a company change its practices, not just hand over a certain sum of money. It also has investigative powers that private attorneys don’t. “If it’s harder for the EEOC to ever litigate,” Martin said, ”employers realize that they don’t have to worry as much when the EEOC comes knocking.”

Meanwhile, “someone’s livelihood is in the balance,” Burroughs said. “They have a lot to lose when justice is delayed.” By the time a case came to Sanghvi’s desk, it had usually been a year or two since the claimant first asked the EEOC for help. Then they would still have to wait for conciliation or litigation to play out. By that time, many claimants had long run out of money to support themselves. “From charge filing to resolution in litigation is sometimes 10 years,” Wheeler said. “That’s a real long time to get redress for what happened.”

Many of the sources I spoke with posited that Dhillon’s rush to push changes through was an attempt to get things finalized before the 2020 election. Once Biden assumes office, he can appoint a new chair, so Dhillon will no longer enjoy the power she currently holds. But all of the current commissioners will outlast Trump’s administration, so unless they decide to leave voluntarily, the EEOC will have a Republican majority until at least 2022, when Dhillon’s term as a commissioner expires. (She has already said she intends to serve out the rest of her term.)

A new Democratic chair could reverse some of her initiatives, such as the mediation pilot. But many will be difficult, especially the conciliation NPRM. That will require Congress to deploy the Congressional Review Act, which allows the body to overturn agency actions 60 days after they are finalized. In what appeared to be an attempt to head that off, Dhillon inserted language declaring it “not a major rule” just 24 hours before the commission held its final vote, which would potentially allow it to go into effect before Congress could reverse it. For the agency to once again collect pay data by gender and race, it would have to repeat the entire process it went through in the first place: having the commission vote in favor and getting the Office of Management and Budget to sign off on it.

These efforts would “take time [and] energy from more affirmative work,” Martin said, while inviting potential legal battles over whether the reversals were done correctly. It’s unusual, she added, for even a Republican EEOC chair to “bake in changes that will bind future commissions and make them less effective.” But that’s what Dhillon has done.

“It will be several years before we can make changes on this to get back to where we need to be,” Murray said.

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