EEOC Commissioner Charge Hike Puts More Power in Members’ Hands

A recent increase in investigations initiated by commissioners at the US Equal Employment Opportunity Commission indicates they are bringing charges of their own volition to tackle issues of concern to them, even when their party isn’t in the majority.

In fiscal year 2023, the five EEOC members filed a combined total of 35 commissioner charges—a hike from the 29 filed in FY 2022 and three charges filed in FY 2021 and 2020 during the Covid-19 pandemic. This jump accompanied an increase of total lawsuits filed by the commission in FY 2023 to 158, the highest annual number since FY 2018.

Andrea Lucas, one of two Republicans who make up the EEOC’s minority, filed the most commissioner charges of any of her colleagues in FY 2023 and 2022 at 15 and 12, respectively.

The agency resolved a 2-2 partisan stalemate with the addition of Democratic Commissioner Kalpana Kotagal in August 2023, which has helped it move forward more readily on major litigation that requires a vote. The change also put the majority party at an advantage in steering the agency’s work, increasing the appeal of self-directed charges for commissioners in the minority.

The partisan dynamics of the commission and recent developments in courts relating to Title VII of the 1964 Civil Rights Act have likely contributed to the boost in commissioner charges, according to employment attorneys.

“This is one of the few instances where whether you’re in the majority or in the minority, you both have the same power,” said Jim Paretti, a labor and employment attorney at Littler Mendelson PC and former senior counsel to former EEOC Acting Chair Victoria Lipnic.

Details of these charges mostly remain confidential, and EEOC members could face federal civil and criminal charges for discussing them. They may become public if revealed by the company facing the charge, or the commission opts to file a suit against the employer.

In September 2023, the EEOC filed a lawsuit against Elon Musk’s Tesla Inc. that alleges it created a hostile work environment for Black workers at its California factory. This lawsuit originated through a commissioner charge filed by Democratic EEOC Chair Charlotte Burrows, which was revealed only when the litigation was filed.

In 2022, Bloomberg Law reported that Lucas filed charges against at least three companies that provided their employees with abortion travel benefits.

Bump in Charges

According to the EEOC’s annual performance report for 2023, the commissioners initiated charges on issues including harassment based on sex and race, failure to provide a religious accommodation, and failure to hire on the basis of race, sex, national origin, and disability.

In its strategic enforcement plan published in September 2023, the agency said the commission will continue to use these directed probes to address top priorities.

The bump in charges comes at a time when the agency is being sent several requests for investigation into corporate diversity, equity, and inclusion programs by ex-Trump advisor Stephen Miller’s America First Legal. The conservative legal group has sent over 30 letters to the EEOC demanding commissioner charges to probe companies such as IBM Inc., Macy’s Inc., and Major League Baseball over allegations that their DEI work discriminates against White and male workers.

The EEOC’s commissioners have been vocal about their own thoughts on workplace DEI. Kotagal has said DEI programs have the support of the majority of the commission, while Lucas has urged employers to tread carefully in this area, making it clear that race and sex shouldn’t be part of employment decisions.

Nonnie Shivers, an attorney at Ogletree Deakins, said that the “split among the commissioners along political lines” and differing approaches to polarizing topics such as DEI have likely contributed to the hike in commissioner charges at the EEOC.

“I also think the obvious answer is that commissioner charges are actively being requested, and them being sought out could be driving more as a matter of course,” said Shivers.

A commissioner charge is “one of the tools in not just the commission’s toolbox, but an individual commissioner’s toolbox,” said Rachel See, a labor and employment attorney at Seyfarth Shaw LLP and a former EEOC acting executive officer who was in charge of circulating charges to the commission.

Any individual or organization can request that the commissioners file a charge. Alternatively, a commissioner can initiate a charge of their own accord and present it to an EEOC field office for investigation.

Paretti said that to an extent, it’s likely that individual commissioners are motivated by others on the commission filing these charges. “If no one is really actively filing, it’s easy to forget that they’re out there as another vehicle,” he said.

While commissioners have filed more charges of their own in recent years, the number of total charges that the commission has received from the public has also grown. In FY 2023, the EEOC reported receiving 81,055 new discrimination charges, an increase of nearly 10.3% compared to the previous year.

Useful Tool

Individual requests for a commissioner charge are evaluated by an EEOC field office, which decides whether to forward the request to the commissioners. The field office can also try to get a commissioner to sign off on a charge based on its investigations, independent of an outside request.

“There are multiple circumstances in which commissioner charges can provide added value,” Democratic EEOC Vice Chair Jocelyn Samuels told Bloomberg Law in an interview. Samuels filed 11 charges in fiscal year 2023, the highest after Lucas.

“For example, if during an investigation of an existing charge, a field office discovers a potential violation that’s not covered in the allegations or the scope of that charge,” it could file a commissioner charge request, Samuels said.

These requests from field offices rotate among the five commissioners until one chooses to take up the charge and sign it, but if no one does, it dies, said Paretti.

“Being able to harness the power of the federal government to investigate something is part of a commissioner’s power,” said See.

Samuels said that since she joined the commission in 2021, she’s filed commissioner charges independently as well as based on requests from an EEOC field office.

The EEOC said it doesn’t have available commissioner charge data before 2015, but other data suggests the annual numbers have fluctuated over the long term. A 2010 report indicates panel members filed 39 charges that year. According to previous reporting by Bloomberg Law, in 2006, they filed 15 charges, and only one in 2003.

EEOC General Counsel Karla Gilbride told Bloomberg Law in an interview that her office tries to work closely and collaboratively with the commissioners and investigative staff on these charges. “I think it’s an important tool, ideally to be used in combination with the Office of General Counsel who would pick up the baton once an investigation of that commissioners charge is concluded,” she said.

“They’re not meant to wholly displace the charging system,” said Paretti. “The system is ultimately based on charging parties making allegations, but they sort of fill a gap.”

Shivers said employers are keeping an eye out for commissioner charges related to DEI after recent letters of request sent to the EEOC by conservative groups, as well as on action challenging diversity programs in courts.

“Having been through and worked with various companies on commissioner charges, once an employer is subject to those, I would say that the risk and the concern is very real, and many employers are well aware of how difficult and expensive investigations could be and how lengthy they are,” said Shivers.