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EEOC Leaders Want More Say Over Briefs in Bias Lawsuits (2)

March 11, 2020, 6:48 PMUpdated: March 12, 2020, 12:44 AM

EEOC commissioners will begin reviewing “friend-of-the-court” briefs before the agency’s lawyers file them in discrimination lawsuits brought by workers, following a move earlier this week to rein in the civil rights agency’s Office of General Counsel.

The Equal Employment Opportunity Commission will often weigh in on cases it hasn’t brought itself, but could have wider impacts on enforcing workplace discrimination laws.

The commissioners approved a 90-day pilot program that will require the agency’s top lawyer to provide, when requested, a draft copy of “amicus curiae” briefs before they’re submitted to a court, according to a Tuesday memorandum obtained by Bloomberg Law.

Although commissioners generally vote on whether the EEOC should file an amicus brief in a particular case, a review of the actual document by commissioners wasn’t required in the past, according to David Lopez, the EEOC’s general counsel during the Obama administration. Lopez is now a co-dean of Rutgers Law School.

The memo also requires the general counsel to inform the current three-member panel whenever a court requests an amicus brief from the agency. Two seats on the five-member commission remain vacant.

The action follows the EEOC’s decision to scale back the general counsel’s authority to make unilateral decisions in some lawsuits the agency brings on behalf of workers. Similar to that March 9 vote, the pilot program would put more litigation-related decisions before the EEOC leadership for consideration.

The decision alters procedures approved in 1985, according to the memo.

“The Chair and Commissioners may submit comments to correct a misstatement of law or fact in a draft brief, if any, not previously identified during the usual amicus recommendation vetting process, and may offer overall comments on draft amicus briefs,” the document states. “Such comments shall be shared with the other Commissioners and shall indicate whether acceptance of the comments is a requirement for obtaining the Commissioner’s vote.”

An EEOC spokesman declined to comment on how commissioners voted on the memo.

Democratic EEOC Commissioner Charlotte Burrows said requests to review a draft brief before voting were honored previously, but the biggest change in the pilot program is the required collaboration between leadership.

“The amicus pilot would require Commissioners to seek to reach consensus before suggesting changes to a proposed amicus argument to the General Counsel’s Office, rather than having each Commissioner comment individually,” she said in an email. “If the requirement that Commissioners seek consensus on an amicus argument helps to streamline the process, that could be a benefit.”

The commissioners have a right to be involved with the review and approval process of briefs, said former senior EEOC trial attorney Jerry Hunter, who’s now a partner with Bryan Cave Leighton Paisner in St. Louis. He worked as an EEOC attorney from 1979 to 1981—before the amicus brief procedures that are being changed were implemented.

Hunter also served as the National Labor Relations Board’s general counsel from 1989 to 1993, and said the procedures outlined in the pilot program are in line with the processes he followed at the NLRB.

Recent Votes on Briefs

Chair Janet Dhillon (R) and Commissioners Victoria Lipnic (R) and Burrows have voted at least seven times since November on whether the EEOC should submit an amicus brief in private litigation, or sign onto briefs filed by the Justice Department before the U.S. Supreme Court, according to an agency website on commissioner votes that became publicly available last fall.

One notable vote split occurred when the commission considered signing on to a Solicitor General brief submitted in an age discrimination case, Babb v. Wilkie, which is awaiting a U.S. Supreme Court decision. The Solicitor General Noel Francisco said in the brief that federal workers have to meet a higher standard to prove age bias, but the commission has backed a more lenient standard. Dhillon approved signing on to the brief, but Lipnic and Burrows voted in opposition.

The pilot program also makes clear that any time the EEOC provides its position to the Solicitor General, the leaders must vote to approve that action.

(Updated to add comments from EEOC Commissioner Charlotte Burrows in 11th paragraph.)

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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