EEOC nominees Janet Dhillon and Daniel Gade at their confirmation hearing in September in Washington. Credit: Diego M. Radzinschi/ ALM

The U.S. Equal Employment Opportunity Commission could soon be whittled down to only two members and lose its quorum thanks to a U.S. Senate dispute over pending nominees, potentially halting any new policy announcements and large investigations.

Democratic and Republican senators haven't reached a deal that would approve two Republican nominees: Janet Dhillon, former Burlington Stores general counsel, for EEOC chair, and West Point professor Daniel Gade. Obama-era Democratic member Chai Feldblum, whose renomination has riled some conservatives, is also awaiting confirmation. Trump's nominee for EEOC general counsel, Sharon Gustafson, a Virginia solo practitioner, is also pending approval.

As the Senate prepares to leave for its holiday break, the EEOC could start the new year without a quorum.

“This means the potential of a shutdown of significant litigation,” said former EEOC general counsel David Lopez, now co-dean of Rutgers Law School. “The big cases, cases where there is a policy change.”

A stalemate has ensued over the EEOC nominees after Republican Sen. Mike Lee of Utah reportedly blocked Feldblum's appointment, and Democrats refused to clear the Republican nominees without her as part of the package deal. Lee has said that Feldblum, the first openly gay EEOC commissioner, curtailed the rights of religious groups. Feldblum has pushed back against this characterization.

“I believe there are some situations in which the rights of religious liberty for organizations who believe homosexuality is sinful will conflict with and should prevail over the rights of LGBT people who might experience discrimination at the hands of such religious organizations,” Feldblum wrote this week at Medium. “The reason I believe that is because I care deeply about preserving religious pluralism in our country — even if it that means protecting religious organizations whose views I disagree with.”

Lopez, of counsel at Outten & Golden, said the attempt to block Feldblum represents an “inexplicable political landscape” that will weaken an agency tasked with upholding federal civil rights laws for private employers.

Feldblum would be forced to leave the commission at the start of the year if she is not confirmed in the next several days. The remaining commissioners are acting chair Victoria Lipnic, a Republican appointee, and Democratic member Charlotte Burrows.

The EEOC said Wednesday it is “planning and preparing for the loss of a quorum, should it happen.”

In the event of a loss of quorum, the agency would not be able to bring some cases. The commission votes on whether or not to bring certain lawsuits that would result in a significant cost or that examine a novel legal principle. Day-to-day activities will continue, and some work would be deferred to the office of the general counsel and to the regional offices.

Guidance for employers, such the recent advice about harassment in the workplace, and updated wellness rules, would also need to be cleared by the commission.

Part of the EEOC's wellness rules, which were struck down by a federal court after an AARP lawsuit, were formally vacated in an administrative action this week—one sign the agency might be moving forward on certain issues while it still has a quorum. The agency was required to take action on those rules by Jan. 1, 2019.

Pay data collection, another measure struck by the Trump administration, also could be addressed by a full commission once the new members are in place.

Amicus briefs filed in appellate courts need commission approval. The EEOC weighs in on issues of developing law in the discrimination space. The agency led the charge, for example, on cases promoting LGBT protections in the workplace. The Trump administration's Justice Department has lined up against the EEOC in several cases.

“Much of the core enforcement work will remain in place, but there will be delays in addressing some of the larger issues,” former EEOC chair Jenny Yang said. “There are always important, evolving issues that the EEOC is tasked to resolve.”

Carolyn Wheeler, senior counsel at Katz, Marshall & Banks and a former EEOC appellate attorney, said much of the agency's activity is delegated beyond the commission, so it will still function.

A two-member commission can approve certain actions, Wheeler said, and once a five-member board is back in place those actions can be later ratified. “There is so much of the day-to-day operations that operate on auto-pilot,” Wheeler said.

Read more:

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New Case at US Supreme Court Tests Gender Pay Disparities

US Justice Department Opens New Front Against EEOC

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