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EEOC Predicted to Veer From Novel Lawsuits in Early Biden Years

Nov. 30, 2020, 10:31 AM

The U.S. Equal Employment Opportunity Commission is less likely to test novel workplace discrimination theories through litigation while Republicans maintain a majority at the agency and hold the general counsel’s office through the first years of a Biden administration, current officials and management attorneys said.

“As a general matter, I don’t believe that litigation should be a policy-making device,” Republican EEOC Chair Janet Dhillon told Bloomberg Law in a phone interview. “The commission sets policy where we’re expressly authorized to do so.”

All significant lawsuits—including those that involve new areas of the law, catalyze “public controversy,” or include systemic bias allegations—must come before the agency’s five-member leadership panel for a vote before they can be filed. Dhillon has also said previously that litigation should be pursued as a “last resort.”

The civil rights agency likely will adopt a more conservative approach to litigation, attorneys said, at a time when there are a number of pressing legal issues. These include the clash between religious liberties and LGBT rights, as well as the push to eliminate systemic racism in the workplace in the wake of nationwide protests triggered by the death of George Floyd, who died after a Minneapolis police officer held his knee on Floyd’s neck for nearly nine minutes.

When Democrats had control at the civil rights agency during the Obama administration and the first years of the Trump administration, the EEOC was known for its aggressive enforcement of anti-discrimination laws. This included taking stances on open legal questions at the time, such as whether Title VII of the 1964 Civil Rights Act protected LGBT workers.

But some business representatives viewed the Obama-era commission’s litigation as “fishing expeditions” for workplace discrimination, said James Plunkett, former director for labor law policy at the U.S. Chamber of Commerce. He’s now a senior government relations counsel with Ogletree Deakins.

Plunkett pointed to a federal appeals court ruling last year that required the EEOC to pay $3.3 million in legal fees to a trucking company after the agency was found to have pursued some “frivolous” sexual harassment and retaliation claims.

A GOP-controlled commission will likely avoid that type of litigation, Plunkett said, adding that a Republican majority isn’t synonymous with eliminating enforcement. Already, the agency’s Republican General Counsel Sharon Gustafson has focused on eradicating religious discrimination in the workplace.

Republicans are slated to maintain the majority until at least July 2022, and the general counsel spot until 2023.

“I don’t think it means letting employers off the hook,” Plunkett said.

Democratic Commissioner Charlotte Burrows said the agency has “always been a leader in advancing equal opportunity in the workplace, regardless of which party controls the White House or the Commission.”

“I am confident that will continue in the future,” Burrows said in an emailed statement.

Litigation Votes

Between November 2019 and September 2020, Republicans held a 2-1 majority on the commission with two seats vacant. Former Commissioner Victoria Lipnic (R) frequently acted as a swing vote on litigation.

The three commissioners voted unanimously 31 times in 48 votes to approve or reject litigation, or to file friend-of-the-court briefs in cases. Lipnic joined Burrows 15 times during that time to approve litigation, while Dhillon voted against it.

Two of those lawsuits, for example, involved age discrimination allegations against employers that fired drivers over the age of 70 because insurance policies wouldn’t cover those workers.

It’s unclear whether the current 3-2 Republican majority would have sided with Dhillon in the litigation she voted against.

After the GOP majority was secured at the end of September, publicly available votes from the month of October show one instance of the Republicans voting along party lines to reject litigation, and to reject participation as a friend-of-the-court in one lawsuit. The website doesn’t specify the nature of the cases that weren’t filed.

The five commissioners, however, also unanimously OK’d eight suits, including a lawsuit against an employer for firing a recovering opioid addict.

Former EEOC attorney Carolyn Wheeler said the chair decides whether lawsuits go to the commission for approval. If the future Democratic chair wants lawsuits filed, the chair can tell the general counsel to instruct the district office to file the suit and not submit the cases for a commission vote, Wheeler said in an email.

“If the proposed litigation is in the categories of cases that have to be submitted to the Commission, then of course the Republican majority might vote down some cases,” she said.

Quality, Not Quantity?

Dhillon previously said her view of litigation is guided by quality, not quantity—a view shared by Republican Vice Chair Keith Sonderling. He said he approaches every bias charge a worker submits to the agency by “reviewing the facts and underlying investigation, and ensuring the case will be based on sound legal theories.”

“Litigation is a serious matter for all those involved—it has the full force and weight of the federal government behind it,” Sonderling said. “When there is a need for litigation, I want the Commission to bring strong, impactful cases that are based on well-grounded facts and law.”

All five EEOC commissioners were contacted to comment for this article. Republican Commissioner Andrea Lucas didn’t respond to an email request.

David Lopez, the EEOC’s general counsel during the Obama administration, said he’d “perfectly expect” the current EEOC to be “visible and aggressive” in its enforcement, given the nation’s #MeToo movement and reckoning with systemic racism.

However, “bureaucratic impediments” implemented by Dhillon, like pulling back some litigation authority delegated to the commission’s top lawyer, could hinder the agency’s systemic discrimination enforcement, he said.

Other examples that could shape litigation include recent guidance on when the agency can bring “pattern or practice” systemic bias suits and a proposal on sharing information with employers during pre-litigation conciliation processes.

Democratic Commissioner Jocelyn Samuels said class litigation should continue to be a key weapon in the agency’s arsenal for rooting out workplace bias.

“There are cases in which systemic litigation is really the most, if not the only, effective means of addressing widespread practices that affect large components of the workforce,” she said.

Issues to Watch

Civil rights groups said the EEOC should advance workplace protections, especially for LGBT workers, following a landmark U.S. Supreme Court ruling establishing that they’re protected under Title VII.

Greg Nevins, senior counsel at Lambda Legal, said he’s watching to see the EEOC’s position on the standard that allows employers to reject a worker’s religious accommodation request if it poses an “undue hardship” on their business—an issue the U.S. Supreme Court could take up this term.

The EEOC previously filed a friend-of-the-court brief urging the high court to revisit the standard.

The EEOC also should state explicitly that the 1993 Religious Freedom Restoration Act doesn’t apply to the agency’s enforcement of Title VII, said Sharita Gruberg, the senior director for the LGBTQ Research and Communications Project at the Center for American Progress. RFRA gives for-profit, closely held corporations a defense to government actions that substantially burden their sincerely held religious beliefs.

The Supreme Court in its LGBT ruling didn’t address whether the religious law could supersede LGBT worker protections.

The agency’s enforcement docket will remain full, but with lawsuits using well-established theories, said James Paretti, former chief of staff to Lipnic and an EEOC attorney. He’s now with Littler Mendelson.

“There may be some reluctance on the part of a number of commissioners to make policy by way of litigation,” Paretti said. “There are plenty of singles and doubles to be had out there” by pursuing lawsuits for workers on solid legal ground.

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; Karl Hardy at khardy@bloomberglaw.com

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