Biden Transition Team Floats Trial Balloon: Jenny Yang for OFCCP Director?

It had all the early earmarks of the classic four-part political “trial balloon.”

First, the rumors began to swirl (two weeks ago) that the US DOL Transition Team had selected a candidate to be the next OFCCP Director.

Second, early last week, the rumors named Jenny Rae Yang as that candidate, but with uncertainty: A Member of the US DOL Transition Team and a well-known civil rights advocate and former Commissioner (appointed on August 2, 2012: President Barack Obama), and then Vice-Chair in 2014, then Chair of the EEOC from September 1, 2014 until January 25, 2017 (departed with the arrival of the Trump Administration). In 2016, Ms. Yang also announced, championed and ushered in the EEOC’s Component 2 “hours worked” and “pay data” collection from employers. Sterling credentials to be sure as the OFCCP is slated to be “Ground Zero” in the Biden Administration’s enforcement of employment discrimination based on race, sex and ethnicity.

Third, as media inquiries then began researching the swirling rumor mill, suddenly the “unidentified sources in-the-know” (in this case from the US DOL Labor Transition Team itself) predictably appeared out of the mist and darkness and confidentially (so everyone could hear) confirmed that the US DOL Transition Team was giving “serious consideration” to Ms. Yang—but, of course, they could not talk about it or confirm this news “on the record” due to the reigning confidentiality rules of the Transition Team (but which are not sufficiently strong to stop a leak like theirs, of course. They are willing and able to be only a little bit naughty.) Reporters on the other end of those “leak calls” always wonder: “Who is playing who”? Or is it whom? Better pull the New York Times Style-Guide on that one. And, of course, the Transition Team then would not return press phone calls (this is also in the “trial balloon” playbook along with leaks up against a weekend), but significantly did not deny the story…another classic tell-tale sign: the DNA evidence of a trial balloon story unfolding as planned.

• What is happening now is that the Transition Team is waiting to see if it gets significant backlash from Black civil rights groups and Black spokeswomen/men influential within the Democrat Party. The expression for this kind of cautious “testing of the waters” in the military is: “Run it up the flag pole and see if anybody shoots at it.” If not, proceed to Step Four.

Fourth, in the “trial balloon” formula will be the formal announcement from the Transition Team, or Labor Secretary-nominee Walsh, that Ms. Yang has the job…if she can survive the three-day weekend without the President getting called into yet another intra-party spat among loyal Democrats.

Why all the drama and need for a trial balloon, and a cautious one at that, you might ask? Black Civil Rights groups were not happy that the Administration was filling up with a lot of Department Heads who were not Black, and even while they felt they had a very powerful claim that Biden rode to victory himself, and then won the Senate back (to 50/50) via the Georgia Senate run-off races, on the backs of Black voters. Then, the Biden-Harris US DOL Transition Team was slow to reach out to the traditional Black Civil Rights groups (Urban League; NAACP, Lawyers Committee for Civil Rights Under Law, etc.) when searching out the next US DOL Secretary of Labor. And then, to the further dismay of Black Civil Rights groups, their suggestion for the Secretary’s job bogged down at the US DOL Transition Team. Indeed, eventually their candidate was one of the first to exit consideration from the group of candidates last left standing for the Secretary’s job.

And, among the final two on the short list for the Secretary’s job was Julie Su, an Asian-American candidate from California. Ms. Su made a strong run at the job pushed ahead energetically by Asian-American civil rights and community groups. Full court press. Trying to soften the blow to the Asian community that Biden was picking an old Labor pal of his with sterling credentials to run US DOL and not Ms. Su, it offered her the number 2 job at Labor.  Asian activists threatened that Asians would shrink back from the Democrats if Su did not get the top job. She did not, but not before rejecting the number two job at US DOL out-of-hand and lashing out hard inside the Democrat party. The Walsh announcement hung in the balance for weeks, as a result, as the Transition Committee tried to sort out and appease the Asian-American community.

So, now Jenny Yang emerges from the infighting which followed the search for the Secretary’s job.

And what a sterling background Ms. Yang has for the OFCCP job…almost too good, in fact. Moving from the Chair of the EEOC (a Presidential appointment subject to the advice and consent of the Senate) to the OFCCP Director Chair (appointed by the Secretary of Labor with no Senate oversight) would be a step down for Ms. Yang in prestige. Nevertheless, the OFCCP Director position would be a turbo boost in authority, power and influence over the Biden civil rights agenda since the EEOC is dead to Team Biden for most of President-elect Biden’s coming term as President. And, if Republicans take back the Senate in 2022, Team Biden would then have little chance to control the EEOC and drive EEO policy through the Commission in the next four years. And, the OFCCP has been “the engine” of federal Civil Rights policy for decades now, at any rate. And Ms. Yang’s move to the OFCCP, if her whispered near selection holds up and she still wants the job, is oddly the reverse trek Cari Dominguez took as a Republican. Ms. Dominguez traveled from the OFCCP Director job (in the George H. W. Bush (#41) Administration), to the Assistant Secretary of Labor position, to EEOC Chair, making her then the highest-ranking Hispanic in the Bush Administration (but only after her transfer to become the Chair of the EEOC)

But the freedom Ms. Yang will have at OFCCP will astound her in an agency which desperately needs her more for her administrative skills than what she needs the agency to do for pay reporting and gay, lesbian and transgender rights. While the Chair at EEOC, Ms. Yang was well regarded on both sides of the aisle in Congress and managed the sprawling EEOC very well. She reduced Charge inventories and then championed sexual harassment prevention by establishing in January 2015 a celebrated “Select Taskforce on The Study of Harassment in The Workplace.” (Ms. Yang left the EEOC on July 1, 2017 before the Task Force could fulfill its role. That responsibility then rolled over to EEOC Commissioner Victoria Lipnik who succeeded Ms. Yang as the EEOC Chair, and to fellow Commissioner Chai Feldblum. (Lipnik and Feldblum then published in 2018 a widely acclaimed report titled “KEY FINDINGS Of The  Select Task Force On The Study of Harassment In The Workplace.”) Ms. Yang also modernized the EEOC’s computer systems and began a study of and movement of the EEOC towards systemic discrimination investigations.

Jenny Rae Yang is currently a Senior Fellow in the Center on Labor Human Services, and Population at the Urban Institute. She has been there since she left the EEOC. She obtained her BA from Cornell University and received her law Degree in 1996 from New York University. She then clerked for the Honorable Edmund V. Ludwig in the United States District Court for the Eastern District of Pennsylvania. (“Clerking” for a Judge after graduation from law school is a prestigious plum job for high-performing law school graduates.) After clerking, Ms. Yang went to work for two years at the US Department of Justice, Civil Rights Division, as an investigating prosecutor. In 2003, she joined the well-known Plaintiffs’ law firm in Washington DC known as Cohen, Millstein Sellers & Toll PLLC where she was a partner representing employees primarily on civil rights litigation.

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.