EEOC Members’ Power to Probe Contested in School District Suit

A New Mexico school district’s novel lawsuit challenging an EEOC commissioner’s discrimination investigation tests the scope of an increasingly popular agency enforcement tactic.

Commissioner charges let Equal Employment Opportunity Commission members initiate employer discrimination probes directly without relying on the typical worker-initiated charge process.

Gallup-McKinley County Schools’ claims that the charge overstepped agency authority by being vague and violating due process rights could alter the efficacy of future commissioner charges. The tool has been used to investigate claims like religious bias at Columbia University and race discrimination at Tesla Inc.

“Especially if we see the EEOC commissioners start filing a significant number of charges, I think this will serve as something of a template or a model of building additional arguments around how these charges were brought and whether they were brought lawfully,” said Husch Blackwell partner Sam Mitchell.

The district’s lawsuit responds to a 2024 commissioner charge filed by Republican Acting Chair Andrea Lucas to probe for systemic hiring and employment discrimination against Native Americans.

The complaint said the EEOC did not provide sufficient details, launching what amounts to a “fishing expedition” for employment data. It also claimed the commission failed to follow procedural requirements for the timing of notifications and lacked a quorum to file the charge.

Broad Charges

The charge states Lucas has reason to believe since 2020 the district engaged in a pattern or practice of race discrimination. Potential violations of Title VII of the 1964 Civil Rights Act include failure to interview, hire, and promote.

In one sentence the charge raised potential discrimination around “every personnel action ever taken in the past five years,” said Andrew Sanchez, an attorney for the district.

The district said in a statement it received nine EEOC complaints since 2018, but none concerned hiring of Native Americans and none revealed wrongdoing.

“The real issue here really for us is due process. You ask for a response from us, and how do you prove a negative? How do you prove you didn’t do anything such on a grand scale?” Sanchez said.

A spokesperson for the EEOC declined to comment.

Worker-filed charges generate most of the EEOC’s caseload. However, individual commissioners can file charges under laws the agency enforces, including Title VII. Those remain confidential, unless a suit is filed as a result or parties go public.

The district’s complaint said it is being denied due process by “illegal agency action outside of its statutory authority.”

“There’s tension with due process rights and constitutional vagueness. The idea that the charge is so vague and broad the district cannot immediately respond or defend itself, I think that’s a very important argument that I think is going to get a lot of attention in the briefing,” Mitchell said.

The New Mexico district’s due process argument rides on its assertion that it should be “void for vagueness” under the Fifth Amendment as the EEOC did not give the district “fair notice” of what it has done wrong.

APA Review

The district also alleges the agency violated the Administrative Procedure Act by not providing a reasonable explanation for its probe, thereby failing the “arbitrary and capricious” APA standard of review.

To prevail on their due process and APA claims, the district will have to prove that the complaint is too broad under Title VII’s guidelines, said former EEOC Commissioner Chai Feldblum.

The district raises a compelling argument that the EEOC needs to provide “at least some additional information” beyond stating “you’ve discriminated against Native Americans in employment,” Feldblum said.

“There’s a strong argument that the EEOC has a responsibility under Title VII as interpreted by the courts to provide sufficient information so the respondent has a basis on which to respond,” she added.

A commissioner charge is subject to the same criteria as other EEOC charges, requiring “a clear and concise statement of facts, including pertinent dates, constituting the alleged unlawful employment practices,” according to the agency’s Title VII procedural regulations.

“This charge does not seem atypical to me in terms of what it lays out by the commissioner to begin an investigation,” said Victoria Lipnic, a partner at Resolution Economics and former EEOC acting chair.

On Aug. 21 the EEOC struck back with a subpoena enforcement action against the school district.

Lucas reiterated in an accompanying statement that “a commissioners charge is an important statutory tool expressly enshrined in Title VII.”

Part of the challenge in raising APA claims in response to a commissioner charge is the school district must show how it is considered “final agency action,” said NT Lakis partner Michael Eastman.

Those claims have been leveraged in APA lawsuits against the EEOC over regulations or guidance, but those are more direct examples of final action compared to an initial discrimination charge, he said.

Charges Up

In the last nine years, the number of commissioner charges filed annually by EEOC members have more than doubled, with a total of 33 in fiscal year 2024. A field office can submit a proposed charge for commissioners to sign, or a commissioner initiates the charge themselves.

They can be helpful in investigating suspected systemic discrimination, and for commissioners in the minority party on the panel to pursue claims, Mitchell said.

Charges filed by Lucas include an inquiry into antisemitism at Columbia University and Barnard College that involved broad outreach to staff inquiring about whether they were Jewish or Israeli and if they faced discrimination.

The Columbia antisemitism charge settled as part of the university’s $221 million agreement with the Trump administration.

Columbia’s staff is several times the size of the of Gallup-McKinley County Schools’ workforce.

But this lawsuit filed by a relatively small employer “could end up having a significant impact on the requirements of the EEOC to provide more detail on any commissioner charge,” Feldblum said.

“These are not ordinary times. Generally, there is a response like this that is also not ordinary,” she said.

The case is Board of Education for The Gallup McKinley County Public Schools v. Lucas, D.N.M., No. 1:2-cv-00762.