On Tuesday, the Senate Health, Education, Labor, and Pensions Committee will hold hearings for President Trump’s nominees to the Equal Employment Opportunity Commission. Trump has nominated Janet Dhillon and Daniel M. Gade, with Dhillon serving as chairwoman, to be commissioners on the agency charged with enforcing federal laws barring discrimination in employment.
It’s up to senators on the committee to make sure that these nominees receive rigorous scrutiny and robust questioning. Here are six key questions the senators should ask about civil rights enforcement in the workplace:
1. Do you support the EEOC’s updated data collection initiative which requires federal contractors and large private employers to report information on what they pay employees in each job category by sex, race, and ethnicity?
The pay gap, affecting women and people of color, persists in large part because pay discrimination is hard to detect. Without hard data, it’s difficult to identify, challenge, and root out discriminatory compensation practices or enforce our equal pay laws. Employers also have little incentive to self-audit their pay practices if they have no reason to believe they will remain cloaked in secrecy. The Trump administration recently blocked this data collection, undermining efforts to eliminate the pay gap.
2. Do you agree with the EEOC’s position that discrimination against lesbians, gay men, and bisexual people is a form of sex discrimination?
In Baldwin v. Department of Transportation, the EEOC held that sexual orientation discrimination is a form of sex discrimination, which is prohibited under Title VII of the Civil Rights Act. Earlier this year, the Seventh Circuit Court of Appeals in Hively v. Ivy Tech also held that discrimination on the basis of sexual orientation is barred by Title VII. However, Trump’s Justice Department recently argued against that protection.
3. Do you agree with the EEOC’s position that discrimination based on an individual’s gender identity is sex discrimination?
In Macy v. Department of Justice, the EEOC held that discrimination against transgender employees violates Title VII’s prohibition on sex discrimination. The Supreme Court has previously ruled that gender stereotyping constitutes sex discrimination.
4. Do you agree with the EEOC’s position that an employer who denies a transgender employee the use of a restroom that matches the employee’s gender identity is violating Title VII?
In Lusardi v. Department of the Army, the EEOC held that changing the terms and conditions of employment, in this case, a transgender woman’s access to appropriate restroom facilities, violates Title VII. The EEOC should also work to ensure that transgender employees are protected from health coverage discrimination.
5. Do you agree with the EEOC’s Strategic Enforcement Plan, which has made discrimination based on pregnancy, particularly the issue of accommodation of pregnancy, a priority litigation area?
In the 2015 fiscal year, pregnancy accommodation claims accounted for a quarter of all pregnancy discrimination claims filed with the EEOC, and that the majority were brought by women in low-wage, female-dominated jobs and in high-wage, male-dominated jobs. Earlier this year, the ACLU filed a case with the EEOC on behalf of six female Frontier Airlines employees who said that the company failed to provide accommodations related to pregnancy and breastfeeding. Such cases also often intersect with employees’ rights under the Americans with Disabilities Act.
6. Do you agree that protecting the rights of especially vulnerable populations, such as immigrant, agricultural, and disabled workers, should be a priority litigation area for the EEOC, as stated in its enforcement plan?
The EEOC has been vigorous in defending the rights of the most vulnerable workers against egregious abuses like wage slavery and sexual abuse and harassment. Notable victories in this area include a 2013 jury award of $240 million on behalf of 32 men with intellectual disabilities abused for decades at an Iowa turkey plant, and in 2015, a $17 million verdict against Moreno Farms on behalf of five Florida workers who were repeatedly raped on the job. The agency has a policy of pursuing such litigation regardless of the immigration status of the workers, recognizing that undocumented workers are especially susceptible to the worst employer abuses. It has also focused its scrutiny on hiring practices that discriminate against people with disabilities.