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EEOC Top Lawyer Nomination Signals Aggressive Litigation Focus

June 7, 2022, 5:11 PM

Karla Gilbride, President Joe Biden’s pick to serve as the EEOC’s top lawyer, is expected to carry out an aggressive litigation program that would help cement the administration’s progressive agenda.

The senior attorney at the nonprofit advocacy group Public Justice likely would join a newly formed Democratic majority on the US Equal Employment Opportunity Commission. If confirmed, Gilbride would be the final piece needed for the workplace antidiscrimination enforcement agency to execute progressive policy measures that have been under consideration for more than a year.

“The most tangible ways that employers are involved with the EEOC is when the EEOC files a lawsuit,” said Andrew Maunz, who previously served as the EEOC’s legal counsel during the Trump administration. “That doesn’t happen as much as it has in other years, but I think who the general counsel is will certainly play a role in that.”

The EEOC general counsel is responsible for overseeing the agency’s 15 regional attorneys, each of whom is a career official with specialized knowledge of their respective districts. The general counsel has the ability to stop or continue litigation the regional attorneys initiate, and to present certain cases to the commission for a vote.

Gilbride, who’s been at Public Justice for seven years, has a record of suing big-name companies for alleged employment violations ranging from arbitration rights, Covid-19 safety protocols, wage and hour disputes, and employment discrimination. Her career even had her floated as a potential pick for a nomination to the US Court of Appeals for the District of Columbia Circuit.

Less than a month before the White House announced Biden’s intent to nominate Gilbride for the EEOC post, the civil rights litigator scored a US Supreme Court win for a worker in a dispute over whether a Taco Bell franchise could force arbitration of the worker’s overtime claims.

Stephanie K. Glaberson, a professor at Georgetown University Law Center and former colleague of Gilbride’s at Public Justice, said she is a “brilliant lawyer and advocate.”

“Karla—it’s no secret based on her background—has always been a champion for workers and consumers,” Glaberson said. “Her work has really been dedicated to using the law to bring power to people who have less of it in society so I would expect her to continue doing that.”

Lengthy Vacancy

Gilbride would be filling a role that’s been vacant since Biden fired the agency’s Trump-appointed general counsel, Sharon Gustafson, in March 2021. Career officials have been overseeing the office in the interim.

But recent changes have made it less clear how much power Gilbride would have if the Senate confirms her as general counsel.

The EEOC’s Republican majority in January 2021 voted to change the way it authorizes litigation, allowing commissioners to decide whether to vote to approve or reject every proposed lawsuit. The general counsel and lawyers in EEOC field offices previously were allowed to make independent decisions in run-of-the-mill workplace discrimination litigation, while more sensitive or resource-exhaustive cases were presented to the commission.

It’s unclear if the EEOC will reverse that decision if it secures a Democratic majority this year with the nomination of Kalpana Kotagal to the commission, according to Maunz.

Biden nominated Kotagal in April to replace Republican Commissioner Janet Dhillon, whose term expires in July. Kotagal’s nomination has moved relatively quickly, but last month the Senate Health, Education, Labor and Pensions Committee deadlocked on her nomination, forcing an extra procedural step before full Senate consideration.

“The litigation delegation I think is the biggest piece that’s very tangible that I think people will see a big difference in almost immediately” if it’s overturned, said Maunz, now a partner at Jackson Lewis PC.

There’s also the issue of how much time it would take for Gilbride to get up to speed in her new role.

“The challenge is how do you lead this disparate and experienced group of people and have them work towards your goal,” said Stuart Ishimaru, a former EEOC Democratic commissioner who’s now a consultant at LMI. “That’s a management challenge most general counsels take some time to get used to.”

Chai Feldblum, another former EEOC Democratic commissioner who taught Gilbride at Georgetown Law, said she’s confident the civil rights litigator will be able to strike that balance.

That ability to listen “is an essential attribute for success because she has to work collaboratively with regional attorneys who have been with the agency for years, have strong personalities, and are very good at their jobs,” said Feldblum, who’s now vice chair of the US AbilityOne Commission.

Strategic Enforcement Plan

Gilbride’s litigation history likely would be a boon to a more aggressive EEOC agenda.

In addition to her Supreme Court win in the Taco Bell arbitration case, in 2019 Gilbride convinced a federal judge in California to rule in favor of a Mexican farm worker on a temporary visa who sought to avoid arbitrating his wage and hour claims because he signed the arbitration agreement under duress.

Gilbride also has represented workers at Amazon.com Inc., Tyson Foods Inc., and Smithfield Foods Inc. in cases alleging failure to protect them from Covid-19.

The nomination comes as the EEOC is planning to vote this fall on a new strategic enforcement plan, which sets the agency’s litigation priorities and other goals.

Democratic commissioners generally prioritize tackling large systemic cases rather than individual cases when allocating limited resources, Ishimaru said. “It looks like she will take a broad and careful view on how to best use resources and choose targets,” he said of Gilbride.

To contact the reporter on this story: J. Edward Moreno in Washington at jmorenodelangel@bloombergindustry.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com