EEOC-Initiated Litigation - 2023 Edition

©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 1 PART I: Current Trends in EEOC Enforcement A A Year Of Shifting Leadership; A New Democratic Regime On The Horizon Following the timeline-altering upheaval that characterized FY 2020, which led to structural changes and a new leadership regime in FY 2021, the EEOC’s Republican majority remained in FY 2022. With that came a strikingly (and unexpectedly) low number of EEOC filings in FY 2022. Last year marked a bullish outlook for 2022 with a revival from a down year in 2020 contributable in large part to the pandemic. Thus, FY 2022 was a surprisingly stagnant year for the agency. Nevertheless, with a Democratic majority inevitably on the horizon, a generous budget increase to $464,650,000—a whopping $60 million increase from last year—as well as several new strategic objectives planned for FY 2023, a busy year may very well lie ahead. Specifically, FY 2020 experienced a significant downturn in EEOC activity as a likely result of leadership changes and the COVID-19 pandemic. Questions thus remained as to the extent of the impact this might have on subsequent years. However, the EEOC quickly rebounded in FY 2021 with almost half of FY 2021 filings were in the month of September alone, signaling a busy year for FY 2022. But with a mere 95 filings at the close of the fiscal year, FY 2022 did not live up to that case-filing trajectory. The EEOC has seen budget boosts in the last two years, and has signaled the hiring of numerous field staff, including lawyers. The pieces seemed to be in place for a more robust year-end filing spike once again in FY 2022, but the numbers did not bear that out. This could be, in part, because the Commission was still led by a Republican majority, and the EEOC attorneys in the field are waiting for the composition to flip to the Democrats to increase the likelihood cases will receive a green light, or that the authority to file actions will once again be delegated to the field entirely. The Commission’s leadership team includes five members, including the Chair, Vice Chair, and three Commissioners, collectively appointed by the President and approved by the Senate.1 Of the five Commissioners, no more than three may be members of the same political party, a requirement promising bipartisanship outliving administration changes.2 In FY 2021, the EEOC’s leadership consisted of five commissioners and a Republican majority: Charlotte A. Burrows (Chair, Democrat); Jocelyn Samuels (Vice Chair, Democrat); Janet Dhillon (Commissioner, Republican); Keith E. Sonderling (Commissioner, Republican); and Andrea R. Lucas (Commissioner, Republican). The same leadership remained in FY 2022 until Commissioner Dhillon resigned in November 2022. Commissioner Dhillon’s term expired in July, but she was able to keep her seat because Biden’s nominee to fill the position, civil rights attorney Kalpana Kotagal, had not yet been confirmed by the Senate. Absent a Senateconfirmed replacement, Ms. Dhillon could have kept her seat until the end of the year. As of the publication of this book, Ms. Dhillon’s seat presently remains vacant, and there is currently a 2-2 partisan split on the Commission as result. The split will remain until Ms. Kotagal, Biden’s nominee, is confirmed by the Senate. B Changes Made; Changes Continue To Be Reversed Last year was one of change and recovery for the EEOC as a result of the pandemic and new leadership. At the close of FY 2021, we reported on how the new EEOC leadership, installed by the Trump administration late in his presidency, had been pushing to make substantive changes to how the EEOC approaches its litigation and enforcement programs. In particular, we noted two changes that we believed could have a lasting impact on EEOC litigation: the changes the EEOC tried to make to its conciliation and mediation procedures, and its efforts to scale back some of its own litigation authority by taking that authority out of the hands of the General Counsel and Regional Attorneys and placing it firmly back in the hands of the Commission. Both encountered setbacks in FY 2021, which continued into FY 2022. 1 U.S. Equal Employment Opportunity Commission, Legislative Affairs: The Commission, 2 See 42 U.S.C.A. § 2000e-4 (West).