Rare Commissioner-Initiated Bias Probes Spiked at EEOC in 2023

Commissioners at the Equal Employment Opportunity Commission filed a total of 35 of their own charges in fiscal year 2023, a notable leap from 21 the previous year and the three filed in both 2021 and 2020.

Commissioner charges, unlike traditional EEOC complaints, are targeted investigations of employers that can be launched by any of the agency’s five commissioners and allow them to probe for discrimination at companies without waiting for a charge from a worker to initiate the process. Commissioner charges are confidential and the initiator doesn’t need to inform their colleagues of the charge.

The exponential rise in the use of this investigative and enforcement tool comes as the agency is facing increased pressure to initiate charges against major corporations over the legality of their diversity, equity, and inclusion programs. Conservative group America First Legal has filed dozens of requests for commissioner probes of corporate DEI policies, arguing they are discriminatory.

Of the five commissioners, Republican Commissioner Andrea Lucas submitted the highest number of commissioner charges—15 in FY 2023—while the agency’s vice chair, Democrat Jocelyn Samuels, filed 11, according to the EEOC’s website, which was updated to include the charge statistics on Thursday.

EEOC Chair Charlotte Burrows filed eight charges and Commissioner Kalpana Kotagal, whose confirmation broke the agency’s 2-2 partisan tie in August 2023, filed one charge, the website said.

Republican Commissioner Keith Sonderling didn’t file any commissioner charges in the 2023 fiscal year.

Lucas also filed the highest number of commissioner charges in 2022. Bloomberg Law reported in November of that year that she had filed at least three charges that targeted companies providing their employees with abortion travel benefits following the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization that triggered abortion bans in several states.

In 2023, the EEOC filed a lawsuit against Tesla Inc. alleging a hostile work environment for racial minorities at a Fremont, Calif., factory. The lawsuit was based on a 2022 commissioner charge filed by EEOC Chair Charlotte Burrows, according to the complaint.

The EEOC didn’t immediately respond to a request for comment Friday on the increase in commissioner charges.