Carolyn Wheeler Quoted in The Nation

Katz, Marshall & Banks counsel Carolyn Wheeler was quoted on the damage done to the Equal Employment Opportunity Commission (EEOC) in The Nation article, “A Wrench in the Works.”

The EEOC is the federal agency tasked with enforcing civil rights laws against workplace discrimination and despite the strongly pro-business position held by the Trump administration, it continued to operate normally for the first two years. That all changed in May 2019, when corporate lawyer Janet Dhillon took over as EEOC chair.

Almost immediately, Dhillon began to implement several changes to EEOC protocols and procedures that significantly limited the agency’s ability to pursue even straightforward discrimination cases. While EEOC lawyers and its general counsel have historically enjoyed broad discretion when deciding when they should bring a lawsuit, one of Dhillon’s first moves was to have the entire commission vote on whether to bring a lawsuit in every single case. After receiving backlash, she then announced that she would review every case, and decide if it was appropriate to have the commission vote.

Instead of reviewing and voting on a couple dozen cases a year, commissioners are now being asked to review hundreds. “The impact on the staff is enormous,” said Ms. Wheeler.  This has directly led to not only fewer cases, but also a reduction in their size and scope.

Other changes include implementing pilot programs with little-to-no warning to commissioners or civil rights organizations with a stake in EEOC operations. The EEOC has also stopped pursuing sexual orientation discrimination cases, despite the Supreme Court’s decision in Bostock v Clayton County that sexual orientation is covered by the Civil Rights Act. Additionally, Dhillon has stopped using her authority to collect payroll data that’s critical to pursuing discrimination cases.

“I’ve just never seen what I would call a steamrolling of major changes like this,” says Ms. Wheeler.

At the end of the day, the message that Dhillon’s EEOC has broadcast is that the agency does not want to litigate, which as Ms. Wheeler explains, greatly damages its authority and effectiveness. “The agency has no real credibility in anything it does unless the employer community believes it will litigate.”

Despite the inauguration of President Joe Biden, Dhillon’s term as Commissioner lasts until next year, and she has implemented many of her changes in ways that make their reversal difficult. It will likely take years to undo the damage that she has inflicted on the EEOC.

Read the full story here.