EEOC-Initiated Litigation - 2022 Edition

2 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP Senate approved Senate Joint Resolution 13, which rescinded the rule. 7 T he House followed suit with House Joint Resolution 33 on June 24, 2021 . 8 O n June 30, 2021, President Biden signed the resolution that killed the new conciliation requirements. 9 On March 10, 2020, the EEOC released information about a significant internal resolution that may drastically change how high-stakes litigation decisions are made at the EEOC. 10 The purpose of the resolution appeared to be to rein in many of the powers previously held by the EEOC’s General Counsel and Regional Attorneys, who have historically wielded considerable discretion over the types of lawsuits that would be filed and the legal positions the EEOC would advance. The resolution made clear that it is now the Commissioners, and not the General Counsel, that will make the decisions to commence or intervene in litigation. According to the resolution, the Commission now has exclusive authority over cases that would, among other things, involve: systemic discrimination or a pattern or practice of discrimination, a major expenditure of agency resources, issues on which the Commission has taken a position contrary to precedent in the Circuit in which the case will be filed or on which the General Counsel proposes to take a contrary position, as well as “other cases reasonably believed to be appropriate for Commission approval in the judgment of the General Counsel, including cases that implicate areas of the law that are not settled and cases that are likely to generate public controversy,” and all recommendations in favor of participation in a case as amicus curiae. 11 The changes were reiterated and emphasized again with another resolution effective on January 13, 2021 . 12 This later resolution further modified the delegation to require that the General Counsel transmit any cases that do not fit directly within the criteria above to the Commission for a 5-day review period. If, during the review period, a majority of the Commissioners believe the case is appropriate for Commission approval, the General Counsel must submit the case to the Commission for a vote before filing suit. Some enterprising employers had already tried to use these new rules to attack EEOC litigation in court, by arguing that a lawsuit was invalid if not brought in strict compliance with those new rules. For example, in EEOC v. Route 22 Sports Bar, Inc. , 13 the U.S. District Court for the Northern District of West Virginia rejected such a challenge, holding that the EEOC did not pass its new procedures to shield employers from liability and therefore did not confer any procedural rights upon employers. In that case, the EEOC alleged that the employer had subjected the charging party and a class of current and former female employees to a hostile work environment on the basis of their sex. 14 The employer filed a motion for judgment on the pleadings that argued, among other things, that the EEOC failed to obtain approval from the EEOC Commission prior to filing a lawsuit alleging systemic discrimination, in violation of the EEOC’s new internal litigation approval procedures . 15 But the court held that “[w]hen determining the conditions precedent that the Commission must satisfy before instituting an enforcement action, federal courts look to the statutory text of the Act . 16 Title VII includes only four conditions precedent to bringing suit: “(1) a charge of discrimination and a notice of that charge to the employer; (2) an investigation; (3) a reasonable cause 7 S.J. Res., 117th Cong. (2021). 8 H.R.J. 33, 117th Cong. (2021). 9 Remarks on Signing Legislation Regarding Methane Pollution, Predatory Lending, and Employment Discrimination, Daily Comp. Pres. Doc. DCPD-202100551 (June 30, 2021). 10 U.S. Equal Employment Opportunity Commission, What You Should Know About EEOC And Modified Delegation Of Litigation Authority (Mar. 10, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-eeoc-and-modified-delegation-litigation- authority. 11 Id. 12 U.S. Equal Employment Opportunity Commission, What You Should Know About EEOC And Modified Delegation Of Litigation Authority (Mar. 10, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-eeoc-and-modified-delegation-litigation- authority. 13 EEOC v. Route 22 Sports Bar, Inc. , No. 5:21-CV-7, 2021 WL 2557087 (N.D.W.V. June 22, 2021). 14 Id. at *1. 15 Id. at *2-3. The employer had checked the publicly available results of the Commissioners’ votes for the period preceding the filing of the lawsuit and had found that it was not included on the list of lawsuits approved by the Commission. Id. at *2. 16 Id.