EEOC Changes, GC Firing Gives Litigation Reins to Commissioners (Bloomberg Law)

Jones Day partner and former EEOC General Counsel Eric S. Dreiband looks at recent changes at EEOC and the impact of the firing of its general counsel. Litigation will be authorized by the commissioners now, he says, and if conciliation fails, respondents may contact the commissioners and their staffs directly and try to persuade them that a case is unworthy of litigation.

On Jan. 13, the Equal Employment Opportunity Commission voted to change the way it authorizes litigation. Then, on March 5, President Joe Biden fired the EEOC’s general counsel, Sharon Gustafson.

These two actions signal a shift in authority over litigation from the general counsel to the commissioners, and they will impact strategies for dealing with the agency.

Gustafson’s replacement, acting General Counsel Gwendolyn Young Reams, will operate within the parameters adopted on January 13, and the EEOC commissioners will be responsible for authorizing all lawsuits it files.

The Structure and Litigation Authority of the EEOC and GC

The EEOC was created by Title VII of the Civil Rights Act of 1964. With the consent of the Senate, the president may appoint up to five commissioners to lead the agency. Commissioners serve five-year terms and no more than three commissioners may be members of the same political party. The president “shall designate” one commissioner to serve as the EEOC’s chair, and the chair is responsible for the EEOC’s administrative operations.

The president also appoints the general counsel “with the advice and consent of the Senate.” The general counsel is responsible for the “conduct of litigation,” and the chair and the general counsel “shall concur” on the appointment and supervision of regional attorneys. The general counsel and other EEOC attorneys “may, at the direction of the Commission, appear for and represent the Commission in any case in court.”

Led by 15 regional attorneys located around the country, EEOC attorneys litigate civil cases in the federal district and appellate courts and work with the Justice Department’s solicitor general on U.S. Supreme Court cases.

The EEOC litigates alleged violations of the federal antidiscrimination employment laws. These include Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act. The EEOC can sue for substantial monetary and injunctive relief, including by filing class-action style lawsuits.

The EEOC annually receives nearly 100,000 charges of discrimination and typically files a few hundred lawsuits. Nearly all EEOC lawsuits begin with a charge because most EEOC-enforced statutes require a charge and investigation before the EEOC can sue.

In 1995, the EEOC’s commissioners delegated to the general counsel most of their authority to authorize litigation. Over time, the commissioners voted on fewer and fewer cases. In 2013, one commissioner complained that in the prior fiscal year, commissioners voted on only three cases while all of the “rest were filed without a vote” by the commission.

The Impact of Recent Changes

The January resolution authorized commissioners to decide whether to vote to approve or reject every proposed lawsuit. This change is especially significant now that the EEOC is operating without a presidentially-appointed, Senate-confirmed general counsel.

EEOC commissioners have much more authority over EEOC litigation. The votes of the commissioners are public (or at least were public as recently as this January), and the recent changes signal a shift in control from the now-vacant general counsel to the commissioners.

The commissioners self-imposed responsibility to decide whether to vote on every proposed lawsuit affects the options available to employers. Before the January changes, EEOC staff determined whether to settle without litigation as part of what the EEOC calls its “conciliation” process.

If conciliation did not produce a settlement, the interested parties typically could only wait and see whether the EEOC would sue them. This occurred because the commissioners had practically no authority to decide whether to litigate a case. Now, the commissioners will be responsible for authorizing all lawsuits filed by the EEOC.

Therefore, if conciliation fails to resolve a dispute, a respondent may contact the commissioners and their staffs directly and try to persuade them that the case is unworthy of litigation.

EEOC commissioners can now also vote on whether to authorize enforcement of subpoenas in federal court, and this new authority is a significant shift to the commissioners over investigations. Prior to the changes, commissioners had no authority to decide whether to seek enforcement of an investigatory subpoena in federal court. Now, the EEOC cannot file such an action unless the commissioners acquiesce in a proposed lawsuit to enforce an EEOC subpoena.

It remains to be seen whether the EEOC will change the new litigation approval process as the composition of commissioners changes. The EEOC approved the January changes by a 3-2 vote, and the terms of the three commissioners who voted for the changes extend to July 1 of 2022, 2024, and 2025. Stay tuned.

Reproduced with permission. Published April 8, 2021. Copyright 2021 by The Bureau of National Affairs, Inc. (800-372-1033) 

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