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EEOC Votes to Scale Back General Counsel’s Litigation Powers (1)

March 10, 2020, 2:04 PMUpdated: March 10, 2020, 7:10 PM

EEOC leadership has voted to limit the agency general counsel’s authority to unilaterally decide the kinds of discrimination cases it brings against employers, a move that follows an earlier effort to eliminate those decision-making powers.

The Equal Employment Opportunity Commission’s Office of General Counsel will now require attorneys in the agency’s 15 district offices to send at least one lawsuit per fiscal year to the commission for a vote to proceed with the case, according to a copy of the resolution obtained by Bloomberg Law. The general counsel also now won’t be able to re-delegate power to the EEOC’s regional attorneys to initiate litigation.

The document, which modifies the commission’s delegation of litigation authority to the general counsel, takes effect Tuesday.

The new framework was approved by the three-member commission in a vote Monday evening, according to the agency. Republican EEOC Chair Janet Dhillon and GOP Commissioner Victoria Lipnic supported the resolution, and Democratic Commissioner Charlotte Burrows voted in opposition, Burrows said.

The commission first delegated litigation power to the general counsel in 1995 as a means to expedite the agency’s ability to commence or intervene in lawsuits, and this is one of only a handful of times that authority has been reconsidered. Delegating litigation authority allows the general counsel and lawyers in EEOC field offices to make decisions in run-of-the-mill workplace discrimination litigation. The politically appointed commissioners in the agency’s Washington, D.C., office previously weighed in only on more sensitive cases, such as lawsuits that could expend a large amount of agency resources, involve new areas of the law, or catalyze “public controversy,” among other criteria.

The modified delegation of litigation authority still gives the Office of General Counsel the power to proceed with lawsuits that don’t match any of those criteria, but establishes channels of communication “for consultation between the Chair and the General Counsel to determine if any other cases are appropriate for Commission approval.”

The resolution also requires a commission vote for lawsuits in which the agency’s or general counsel’s legal stance on an issue is contrary to “precedent in the Circuit where the case will be filed.” This doesn’t necessarily change the agency’s approach to voting on cases like this, but makes clear how the procedure works.

The commission voted to approve 124 out of the 1,933 discrimination lawsuits brought by the agency between fiscal years 2009 and 2019, according to the EEOC.

“It is important for EEOC Commissioners to fulfill their statutory role in initiating litigation while at the same time ensuring that the agency efficiently enforces the Nation’s employment anti-discrimination laws,” EEOC Chair Janet Dhillon said in a statement provided to Bloomberg Law after the vote. “This modification of the delegation of litigation authority strikes that balance.”

Attempts to Change Authority

The resolution follows an attempt the panel made last year to revoke the delegation of litigation authority entirely. Some management attorneys supported that proposal as a way for the commissioners to have direct say over agency litigation. But it produced outcry among worker advocates, who raised concerns that more leadership oversight could slow the enforcement process and politicize the cases the EEOC pursues.

The board later decided against voting on the plan.

The increased review of some litigation is “wholly unnecessary” and could weaken the agency’s litigation program, Burrows said in a statement.

“While I strongly support Commission review of cases that raise novel or particularly significant issues, those were already being decided by the Commission under the prior delegation,” she said. “I voted against the resolution modifying the delegation because I believe it could unnecessarily delay the Commission’s suits on behalf of those who suffer discrimination by increasing review over many routine cases that previously did not—and still should not—require Commission approval.”

Burrows said she’s been assured that the new resolution doesn’t intend to delay litigation, but if the agency’s litigation activity stagnates between now and the end of the fiscal year, the commission should revisit the newly allocated authority. The delegation of litigation authority was confirmed in 2012 and 2016, but “with slight modifications,” according to the latest resolution.

Lipnic said she supports the change, and that giving commissioners more oversight is a matter of good governance.

“The commission needed to restore some of its authority,” she said.

(Updated with additional reporting throughout.)

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

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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