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New EEOC Member May Herald Worker-Friendly Guidance

Law360—Ben James

The confirmation of Cohen Milstein Sellers & Toll PLLC partner Jenny Yang to serve on the U.S. Equal Employment Opportunity Commission not only adds a class action lawyer who will reinforce the agency's commitment to systemic cases, but gives the commission's Democrats a 3-member majority that may translate to more employee-friendly guidance, lawyers say.

Yang brings with her a noteworthy background representing employees in wage and hour and bias class actions — like the landmark Dukes v. Wal-Mart case — and the EEOC has made no secret of its plans to focus resources on systemic or large-scale cases that potentially impact a lot of workers.

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Lawyers say she'll bolster the EEOC's existing agenda, and with her on board the agency will keep heading on the same aggressive course its been following since President Barack Obama took office in January 2009.

“It's hard to see the EEOC getting any more aggressive on systemic cases than it already is,” Akin Gump Strauss Hauer & Feld LLP partner and former EEOC general counsel Donald Livingston said.

“I think this administration came in with the view that federal agencies should be more active, and with respect to the EEOC, pushed more toward systemic and class-type litigation,” added BakerHostetler partner Dennis Duffy. “I don’t see any change in that direction.”

But while Yang isn't expected to have a dramatic impact on the EEOC's overall direction, she will give the EEOC a full complement of five members, which staves off potential 2-2 stalemates on policy issues and sets the stage for the commission to run more smoothly, lawyers said. 

The EEOC Office of Legal Counsel interprets the law and develops guidance on various issues — which tells employers what they have to do to stay in compliance, and the commissioners have to review and vote on that guidance, Livingston explained.

Getting rid of the possibility of a deadlock will make it easier to issue guidance, and likely lead to more guidance coming out of the EEOC in the future, Livingston said. Yang's vote could prove influential when it comes to how the EEOC interprets the law, he added.

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Livingston also pointed out, however, that EEOC Commissioner Chai Feldblum's term is set to expire this summer, which could return the Commission to a 2-2 divide if she's not renominated or replaced.  

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Outten & Golden LLP partner Justin Swartz said Friday that the addition of Yang to the EEOC was a win for employers, who can expect fair treatment, as well as workers.

“Commissioner Yang is an enormously talented and experienced employment lawyer who knows the law and knows what its like to represent employees who have been subject to discrimination. She's also an incredibly fair person,” said Swartz, going on to predict that Yang would leave her mark on the agency's work. 

“Commissioner Yang will no doubt put her stamp on the commission’s agenda and fight for progress on issues that are important to her,” he said.