EEOC Boosts Republican Majority’s Influence Over Bias Lawsuits

The EEOC’s new requirement for commissioner approval to bring most lawsuits puts more power in the Republican-controlled commission’s hands, even as the shift threatens to slow the pace and number of cases brought.

In a recent private vote, the Equal Employment Opportunity Commission revoked longstanding litigation authority delegated to the agency’s general counsel and regional attorneys.

The shift toward more commissioner oversight will empower the panel led by Republican Chair Andrea Lucas to review almost all new cases the agency brings, even many routine matters. Lucas signaled shifting some litigation priorities including challenging diversity programs and focusing on religious discrimination.

“It was a very clear signal to the field that the agency is going to be led from the top down,” said Seyfarth Shaw LLP partner Christopher DeGroff of the move.

“It’s very clear that this administration, and Andrea Lucas, expect all the field leadership to toe the line,” he added.

Bringing or intervening in litigation will now default to commissioner approval with a few exceptions where the general counsel maintains authority, such as enforcing litigation resolutions or record keeping and reporting requirements. The general counsel also maintains litigation authority if the commission lacks a voting quorum.

EEOC field offices are responsible for investigating discrimination charges filed by workers.

Field offices will have to adjust, “but let’s not overstate what that adjustment is,” said former Republican EEOC Acting Chair Victoria Lipnic.

“These are very good, very experienced trial attorneys in the field. They are going to be making the same decisions about, ‘Is this a good case for us to file?’” she said.

At least one employer group welcomed the change. The Center for Workplace Compliance said in a statement it will limit employers exposure to “poorly vetted lawsuits.”

Power Changes

Republican Commissioner Brittany Panuccio joined Lucas in approving the resolution. Democrat Kalpana Kotagal voted against the change.

It’s the latest change to agency procedures adopted in 1995 when the general counsel and regional attorneys were given power to bring some cases without commissioners’ approval. That delegation was reaffirmed in 2012 and 2016 plans.

It opens the door to more scrutiny of even standard discrimination cases, and also allows the the commission to consider bringing only cases that are among Lucas’s priorities, said former EEOC General Counsel Karla Gilbride.

“What this move does is makes it easier for the commission to say, no we don’t want those cases, maybe we want these other kinds of cases instead,” and gives them the power to vote down cases they may not like,” said Gilbride, a Biden-appointee who President Donald Trump fired last year.

Arguably, a future EEOC Democratic majority could also use the shift to their advantage, unless they reverse it.

A spokesperson for the EEOC didn’t respond to a request for comment.

Before the new resolution, commissioners typically voted on filing amicus briefs and cases that used significant resources or dealt with new areas of law. A 2021 modification gave members the ability to call for a vote on most cases, adding to a 2020 change that began to limit the general counsel’s unilateral litigation authority.

“We have a certain amount of transparency in seeing what cases are voted on, but in effect if the regional attorneys are given the message that certain cases are not going to be pursued by the administration, I doubt those will go up for vote even in the first place,” DeGroff said.

The resolution may lead to delays, especially as the agency is strapped for resources, Gilbride said.

The agency had a total of 1,814 employees as of Sept. 30, its 2025 shutdown contingency plan showed. It’s a 45-year low for agency staff, according to EEOC data.

“Asking people to take time away from actually litigating cases to put these memos together and go through multiple layers of review doesn’t seem like the best use of anyone’s time and frankly is frustrating to career staff,” Gilbride said. “This idea of needing to look over your shoulder doesn’t inspire a lot of trust and confidence in career staff’s ability to do their work.”

‘Bottleneck’ of Cases

All workers must file discrimination charges with EEOC before suing their employer. The agency files lawsuits on behalf of only a fraction of charging parties.

Potential delays due to additional commission review could impact worker’s cases, according to Mark Sorokin, a partner at Fernandez Watts Law PLLC and former EEOC attorney.

A defense attorney may argue it’s been too long to bring a lawsuit, or evidence may weaken if people involved no longer remember details, said Sorokin, who left the agency in December.

“Essentially, by creating a bottleneck, the EEOC is at increased risk of having potential lawsuits be dismissed due to laches,” he said, referring to the doctrine that allows courts to deny a claim brought with an unreasonable delay.

The agency received about 88,531 new discrimination charges in fiscal year 2024, according to the most recent EEOC data available. It brought 111 merit lawsuits that year.

The agency filed an average of roughly 110 cases annually between fiscal years 2019 and 2024. But between 1997 and 2012, it filed a far higher average of 200 cases annually, peaking at 438 in fiscal year 1999.

The current less crowded case filing pipeline means the additional layer of a review won’t necessarily lead to delays as it may have decades ago, according to Lipnic.

“Is it one other layer of approval? Yes, it is, no question about that. But is it going to cause some big delay such that it’s going to impinge on any charging party’s rights? No, I don’t think that’s the case,” Lipnic said.

Lipnic said she advocated for the commission to have a greater review over more cases when she joined in 2010, reasoning commissioners shouldn’t be the “last ones to know” about cases.

“I’m not saying the commission would have turned them down by any means, but that’s part of the role of being a commissioner,” she said.