EEOC’s Top Lawyer Bolsters Agency’s Role as Friend of the Court

Six months into her term as general counsel for the US Equal Employment Opportunity Commission, Karla Gilbride is leveraging filing amicus briefs in hot-button employment law cases to help enhance ramped-up agency litigation efforts.

Gilbride, who filled the long-vacant EEOC general counsel role in October, told Bloomberg Law in an interview that in addition to major agency litigation priorities like enforcing Pregnant Workers Fairness Act regulations and workplace harassment guidance, “friend of the court” briefs have been key. The filings allow the EEOC to weigh in on discrimination cases in which it’s not directly involved.

The agency has used them recently to address the US Supreme Court’s new standard for showing harm in allegedly discriminatory job transfers, as well as to tackle novel liability issues for AI-based workplace bias.

“The litigation program that I oversee has been going strong in terms of both the new cases that we filed, several significant cases that we’ve resolved in the last several months, as well as a number of amicus briefs in both appellate courts and district courts,” Gilbride said.

EEOC General Counsel Karla Gilbride

Photo via EEOC

As of April 29 this year, the EEOC has filed 13 amicus briefs, according to its website. In 2023, the agency filed 38, a marked uptick from the previous year, and also increased litigation. Overall, the EEOC filed 50% more employment discrimination lawsuits in the 2023 fiscal year than in 2022.

The presence of Gilbride appears to be keeping these trends moving forward. She has a record of suing large companies in employment cases as a former attorney with nonprofit advocacy group Public Justice and plaintiff’s class action firm Sanford Heisler Sharp LLP.

She has also litigated disability discrimination cases through nonprofit group Disability Rights Advocates.

The addition of Commissioner Kalpana Kotagal in August 2023 has also had an impact, breaking the EEOC’s previous 2-2 partisan stalemate. This allowed a new Democratic majority to push several regulatory and litigation priorities across the finish line, including its biggest litigation and its amicus briefs, which require a majority vote from the panel.

Friend of the Court

The EEOC has witnessed a steady uptick in amicus activity in recent years, with the number of briefs filed in fiscal year 2023 the highest since 2016.

Since she took the top lawyer post, Gilbride’s office has tackled the implications of the Supreme Court’s April 17 decision in Muldrow v. City of St. Louis, perhaps the biggest workplace civil rights law case the justices have decided in recent months.

In that case, the high court ruled that “material,” “substantial,” or “serious” harm isn’t required to show that a job transfer was discriminatory under Title VII of the 1964 Civil Rights Act.

“I believe that’s also a very significant piece of guidance from the Supreme Court that’s going to have a large impact on our work as we litigate under the anti-discrimination laws,” Gilbride said.

The EEOC filed its most amicus briefs since 2016 last year.

She said the general counsel’s office has “cited the Muldrow opinion in amicus briefs that we filed under the Americans with Disabilities Act and in a case that we have on appeal under the Age Discrimination and Employment Act.”

Since the high court’s decision, the commission has addressed the Muldrow decision in an amicus brief in one case, and a supplemental letter brief in another, as well as in a response to a US Court of Appeals for the Third Circuit stay order in litigation pitting the EEOC against Novo Nordisk Inc.

The Muldrow decision also drew attention for its potential impact on diversity, equity, and inclusion programs which are under attack by conservative legal groups following the Supreme Court’s June 2023 decision in Students for Fair Admissions’ suit against Harvard and University of North Carolina at Chapel Hill. The high court ruled that race shouldn’t be a factor in college admissions.

The Supreme Court didn’t weigh in on implications for DEI programs in the workplace through Muldrow, but employment attorneys have said it’s possible mentoring programs or affinity groups that are only offered to employees based on certain protected traits could be a problem for employers and have a chilling effect under this lower standard to show harm.

For example, an employee who believes they were passed over for a promotion or salary increase because they weren’t a part of a company DEI program could argue they experienced some harm.

There has been tension across the aisle at the EEOC with this issue, with Democrat commissioners speaking out in favor of corporate DEI and Republican Commissioner Andrea Lucas strongly advising employers to take a hard look at their programs’ legality.

The agency submitted an amicus brief in February in an Ohio federal court case dealing with voluntary affirmative action, Roberts v. Progressive Preferred Insurance.

In the case, a White worker claimed that Progressive and financial technology company Hello Alice engaged in “unlawful discrimination” by offering $25,000 grants to 10 Black-owned small businesses to use toward the purchase of commercial vehicles.

“We weighed in in that brief to state our position that previous affirmative action guidance has not been affected by the US Supreme Court’s recent decisions in the higher education context in the SFFA v. Harvard and University of North Carolina cases,” said Gilbride.

The EEOC said in the brief that such grant programs are consistent with its 1979 final affirmative action guidelines, and don’t violate Title VII. Affirmative action programs like Hello Alice’s “take voluntary measures to remedy past discrimination” by removing barriers to repair imbalances based on under-representation of groups in a given labor market, the brief said.

Tackling AI Discrimination

The EEOC recently addressed a major strategic enforcement priority— tackling AI-based bias at work—through its first-ever amicus brief on the subject.

A Black job applicant should be permitted to pursue his claims that Workday Inc.'s algorithm-based screening tools discriminated against job seekers, as he feasibly alleged the company acts as an “employment agency,” the April 11 brief said, though it did not weigh in on the merits of the claim itself.

“What we can do with an amicus brief, which is helpful, is that we can weigh in on a specific set of questions that the case presents. And here, the case presented the question of if a vendor is potentially liable as a legal matter,” said Gilbride.

The EEOC’s existing technical assistance document on AI says employers may be held liable when a vendor is involved in discriminatory hiring, but did not specifically discuss vendor liability as an “agent” of an employer, so the brief’s position on the matter took some employment attorneys by surprise.

Gilbride disagreed with the idea that the amicus brief is a departure from previous agency guidance.

“It is consistent and, in fact, draws upon many guidance documents that we had previously filed over the years on such topics as what constitutes an ‘employment agency,’” Gilbride said.

“The intended audience for those technical assistance documents were employers and the technical assistance documents talked about under what circumstances might an employer be liable,” she said. “The amicus brief that we filed in the Mobley case was addressing a very different question, which isn’t about whether an employer could be liable because Workday wasn’t sued by Mr. Mobley as his employer, Workday was sued as the vendor.”

Gilbride said that in addition to working to combat AI discrimination, she is focusing on barriers to the workforce, hiring discrimination, and discrimination affecting vulnerable workers, such as younger or migrant workers and those hesitant about enforcing their rights for fear of retaliation.

“I think we have a very diverse docket of cases right now that cover a wide range of industries and types of employers,” Gilbride said.