Republican EEOC Member’s Exit Boosts Democratic Agenda for Now

An EEOC vacancy left by Republican Commissioner Keith Sonderling gives Democrats a 3-1 majority and a chance to double down on priorities like corporate pay data disclosures and affirming LGBTQ+ worker protections ahead of the US presidential election.

Although Sonderling’s departure is unlikely to change current voting dynamics on partisan issues, it raises an unknown factor of what kind of Republican nominee will take his place— a likely more moderate pick by a White House under Vice President Kamala Harris, or a likely more conservative one under former President Donald Trump.

Sonderling’s confirmation, along with Republican Commissioner Andrea Lucas, in September 2020 solidified GOP control of the agency through 2022—leaving the Republicans with a voting majority even as control of the agency’s agenda shifted to Democratic Chair Charlotte Burrows under President Joe Biden.

Now, as Sonderling is leaving, the agency is in a very different position, where Democrats have control and a voting majority but are facing a potential administration change that could eventually shift majority power on the panel back to Republicans.

“It’s really the chair’s prerogative about what policies and procedures that she’ll move forward in the remaining time of the Biden administration, because no matter what there will be a new administration coming in,” Sonderling said in an interview following his departure from the agency at the end of August.

Implementing and defending challenges against the Pregnant Workers Fairness Act and recent workplace harassment guidance will likely be a focus for the Democratic board along with a potential proposal to require companies to report how much employees are paid based on race and gender categories, Sonderling said.

Since last July when Commissioner Kalpana Kotagal was confirmed, giving Democrats a majority for the first time on the five-member commission since Biden took office, Democrats have formed a bloc to move priorities forward by a 3-2 vote.

In addition to certain party-line votes on litigation, Democrats used their control of the agency to put in place a rule requiring employer accommodations for abortions under the PWFA and gender identity-related protections for LGBTQ+employees under the harassment guidance.

Sonderling and Lucas voted against the Democratic majority on the final versions of both measures when the commission approved them in April. The EEOC is now fighting court challenges seeking to overturn both.

‘Question Marks’

The EEOC has yet to vote on a rule to move forward with pay data collection, which was included on its spring regulatory agenda for 2024.

“Probably one of the biggest question marks for the regulating community on both sides is that people have been expecting a pay data collection the entire time during the Biden administration,” Sonderling said.

The Obama administration EEOC mandate for large businesses to annually submit their pay data by race, sex, and job category was blocked by Trump’s Office of Management and Budget and then caught up in contentious litigation.

A spokesperson for the EEOC did not offer details about a timeline for the pay data collection.

“My prediction is we won’t hear anything about that until after the election, and that’s assuming there’s a Democrat in the White House,” said Esther Lander, a partner at Orrick.

One area where there’s been far more bipartisan agreement during Sonderling’s tenure is around the legal risks posed by AI tools in hiring, an area where the expertise he developed was a “tremendous benefit,” according to Democratic colleague EEOC Vice Chair Jocelyn Samuels.

The EEOC’s Strategic Enforcement Plan for 2024-2028 prioritizes addressing discriminatory recruitment and hiring practices that take into account an employer’s use of artificial intelligence.

“If we try to actually understand the algorithm, understand the technology, we are going to lose. We don’t have the resources, we don’t know how it works. But we do know employment decisions. And we do know if there’s bias in those employment decisions. And at the end of the day we need to address these tools just like we would address any other employment decision,” Sonderling said.

During Sonderling’s tenure, the EEOC has released guidance on AI hiring tools and trained EEOC staff on how to identify discrimination caused by automated systems and AI tools.

Election’s Impact

With the election approaching, it’s unlikely there will be a nominee to fill Sonderling’s seat until next year, but operating with a vacancy is par for the course at the EEOC, according to former Democratic commissioner Stuart Ishimaru.

“The interesting dynamic will be who wins in November and who will be the appointing authority for the vacancy,” he said.

Either way, the seat will have to be occupied by a Republican, but the views and priorities of that Republican nominee could greatly differ depending on who is in the White House.

“Even though it’s a quote-unquote Republican nominee, the president still picks that person. There’s a continuum of Republicans from the most conservative to more moderate Republicans,” Lander said.

“If it’s a Republican administration they’re going to be looking for somebody who is going to pursue religious discrimination cases and reverse discrimination cases,” she added.

A Democratic administration would look for a more moderate Republican that can still can get confirmed by the Senate, Lander said.

A Trump win in November could lead to the only current GOP commissioner, Lucas, becoming chair of a majority Democratic commission, hampering her ability to get a Republican agenda through. It would also limit the Democratic majority from voting on their priorities by having a Republican chair.

The next EEOC term to end is the one currently held by Lucas, which expires in July 2025. The first Democrat’s term to expire is Samuels in July 2026, meaning that’s the earliest Republicans will have a chance at securing a majority.

A Trump presidency would also mean a likely changeover to a Republican general counsel to direct the EEOC’s litigation program, though votes on major cases and amicus briefs still have to pass a full commission vote.

Any Republican nominee to take Sonderling’s place is likely to face tough questions from lawmakers, particularly about diversity, equity, and inclusion, due to the uptick in conservative backlash to DEI programs since the US Supreme Court ruled in 2023 to curtail the use of race as a factor in college admissions.

“Where someone stands on what their understanding is of the law in the [diversity, equity, inclusion and accessibility] area will be for a Republican nominee a bit of a litmus test,” said Victoria Lipnic, a former Republican acting chair of the EEOC, who is now a partner at Resolution Economics.