The Equal Employment Opportunity Commission is considering eliminating its delegation of litigation authority to its Office of General Counsel, sources familiar with the situation told Bloomberg Law.
The agency has traditionally delegated run-of-the-mill workplace discrimination litigation decisions to the general counsel and lawyers at the agency’s field offices. Without that delegation, politically appointed commissioners in the agency’s national office would have to vote on when to commence or intervene in lawsuits.
Currently, cases are only sent for a commission vote if the issues involved will broadly affect many workers, implicate newly developing areas of the law, or might be best addressed by other forms of government enforcement, among other criteria.
At full strength, the commission has five members. It currently has three—two Republicans and one Democrat.
If the commission votes to eliminate the delegation of authority, the new bureaucratic layers could hamper straightforward litigation, Rutgers Law School co-dean David Lopez said. Lopez was previously the EEOC’s longest-serving general counsel. Requiring routine cases to filter up many levels for a full commission vote slows down the litigation process by adding “too many layers of review,” said Lopez, who served during the Obama administration.
“We don’t comment on whether items are circulating for a vote,” an EEOC spokesperson said in an email.
The agency currently lacks a confirmed general counsel. The Trump administration originally picked Sharon Gustafson to fill the role in March 2018. Gustafson’s nomination expired after the Senate failed to confirmed her last year, but the president renewed the nomination in January 2019.
This isn’t the first time litigation authority has been pulled back from the general counsel.
From 2005 to 2009, during the George W. Bush administration, all cases involving the Americans with Disabilities Act went to the full commission for a vote, an EEOC official said. The ADA was signed into law nearly 30 years ago, but Congress amended the legislation in 2008 to widen the definition of “disability” in response to U.S. Supreme Court rulings that had narrowed it.
Without the delegation of authority, “you have victims of discrimination who are waiting for a determination,” Lopez said. “I don’t think it’s good government, to be honest.”
A full rescission of litigation authority also might not be the ultimate outcome, James Paretti, a former senior counsel to Republican commissioner and former acting chair Victoria Lipnic said. He is now a shareholder with Littler Mendelson.
“That’s a lot of cases to come up to review to the commission,” he said.
Even if the delegation authority is pulled back, it doesn’t mean commissioners are trying to dramatically change the kinds of cases or how many cases are filed, Paretti said.
“There’s no ulterior motive here,” he said.
Pulling more litigation authority into the national office could be a good thing, Seyfarth Shaw senior counsel Lawrence Lorber said.
“It stops runaway regional attorneys,” he said. “All I’m saying is that the notion that this is somehow a negative, if that’s the notion, that’s not the case, at least in my opinion.”