EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 3 determination; and (4) an attempt to conciliate the violations found in the determination.” 17 Once those conditions are fulfilled, the statute imposes no additional conditions based on the EEOC’s implementation of its own non-statutory litigation approval procedures . 18 Moreover, according to that decision, because the decision to institute an enforcement action is committed to the sole discretion of the EEOC, that decision was not justiciable: “Contrary to defendants’ assertion, federal courts have recognized that administrative agencies have the discretion to alter or modify their internal procedures when such procedures are adopted for the benefit of the agency and are not primarily intended to confer important procedural benefits upon those who deal with the agency.” 19 At the time, these changes were widely seen as a significant shift in the EEOC’s philosophy and practice towards a curtailment of its own powers and a shift away from using litigation as the blunt-force instrument of choice. It was therefore disappointing for many employers to see the Biden administration immediately reverse course on the conciliation requirements. Moreover, the Route 22 Sports Bar decision shows that the EEOC’s pullback of its own litigation authority relies on a Commission that is interested and invested in limiting the powers of the agency’s lawyers. It provides no self-help to employers. The impact of the changes in delegation authority can be tracked through Commission votes . 20 From November 2019 through September 2020, the EEOC had just three Commissioners, with a Republican majority. During that period, votes were held on 33 litigation matters, with all but one gaining a majority of votes. Interestingly, Chair Dhillon cast a dissenting vote on 17 matters. Between October 2020 and the January 13, 2021 revised delegation of authority, Commissioner Lipnic’s term came to an end and Commissioners Sonderling, Samuels, and Lucas were confirmed, giving the EEOC a full slate of Commissioners, with a Republican majority. Votes were held on 15 litigation matters during that span, with approval given to all but one. The first votes cast under the new delegation of authority began in April 2021. At the same time, the EEOC also began to disclose more robust information about the litigation matters up for consideration, including what part of the delegation resolution prompted the vote as well as a high level description of the case, whether approved or not. Since that time, 31 litigation matters have been up for vote, which is enough information to note some trends of interest to employers. First, despite the concerns of employee rights organizations, the approval process does not appear to have significantly curtailed EEOC litigation efforts. Twenty-one litigation matters have been approved, which represents two-thirds of litigation matters put to vote. Further, more than half received unanimous approval from the Commissioners. Second, class and systemic cases are approved at an even higher rate; of the seven matters given this designation by the EEOC, six have been approved for litigation. Interestingly, the sole matter that was not approved is described by the EEOC as relating to “ADEA, Age, Involuntary Retirement,” an issue that has been a focal point for the agency in recent years. Third, more than half of the cases (18) were put to vote per Paragraph 2 of the revised delegation of authority, which requires the General Counsel to transmit cases to the Commission for a 5-day review period even if the cases do not otherwise fit directly within the criteria requiring Commission approval. The majority of these cases (13) include claims arising under the ADA, which suggests that the Commissioners are giving greater scrutiny to such litigation matters. However, the approval rate for matters raised in this way is identical to the overall two-thirds rate. Perhaps of most note to employers are the voting patterns of the Commissioners. While all Commissioners are more likely to vote to approve a litigation than to disapprove, since the most recent delegation went into effect, Commissioner Dhillon has cast nine votes to disapprove, Commissioner Sonderling has cast eight 17 Id. (citing 42 U.S.C. § 2000e-5(b)). 18 Id. at *4. 19 Id. (citing American Farm Lines v. Black Ball Freight Serv ice, 397 U.S. 532, 538-40 (1970)). 20 U.S. Equal Employment Opportunity Commission, Commission Votes , https://www.eeoc.gov/commission-votes. A special thanks to our colleague, Andrew Scroggins, for his work on compiling this voting data.