EEOC-Initiated Litigation - 2023 Edition

2 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP On July 7, 2020, the EEOC officially announced a new pilot program intended to improve conciliation procedures at the Commission.3 The program was built “on a renewed commitment for full communication between the EEOC and the parties, which has been the agency’s expectation for many years.” 4 On October 8, 2020, the EEOC released the specifics of additional proposed changes to the conciliation process in an NPRM. In its NPRM, the EEOC acknowledged that, historically, it had elected not to adopt detailed regulations relative to its conciliation efforts based on its belief that retaining flexibility over the conciliation process would “more effectively accomplish its goal of preventing and remediating employment discrimination.” 5 While the Commission’s NPRM made clear that the Commission still believes it is important to maintain a flexible approach to conciliation, it also acknowledged that its conciliation efforts had not been terribly successful at resolving charges.6 In an effort to improve the effectiveness of the conciliation process, the NPRM sought to amend the conciliation process for charges brought pursuant to Title VII, ADA, GINA, and the ADEA. The EEOC stated in the NPRM that the proposed amendments establish “basic information disclosure requirements that will make it more likely that employers have a better understanding of the EEOC’s position in conciliation and, thus, make it more likely that the conciliation will be successful.” 7 The EEOC’s perceived lack of transparency during the conciliation process had long troubled employers, who often felt they lacked information at the conciliation stage to meaningfully evaluate risk and make decisions about settlement. The changes proposed by the EEOC were seen by many as a welcome attempt to address this issue. The Republican-led Commission adopted the Final Rule in January 2021, just before the new Biden administration was sworn in. The new rule went into effect on February 16, 2021. But it did not last long. In the following months, Congress exercised its authority Under the Congressional Review Act, which allows it to overturn executive branch regulations within 60 legislative days of when they were issued.8 On May 19, 2021, the Senate approved Senate Joint Resolution 13, which rescinded the rule.9 The House followed suit with House Joint Resolution 33 on June 24, 2021.10 On June 30, 2021, President Biden signed the resolution that killed the new conciliation requirements.11 Further, despite the perceived benefits of the Commission’s previous transparency and delegation reforms, representatives have recently cried foul that they were being mismanaged under Commissioner Chair Charlotte Burrows.12 For example, on September 27, 2022, Richard Burr of the Senate Committee on Health, Education, and Labor and Pensions, and Virginia Foxx of the House Committee on Education and Labor, called out an opinion piece written by Commissioner Dhillon and Commissioner Sonderling as evidence of EEOC mismanagement.13 The opinion piece claims that when a majority of the Commissioners vote against filing a proposed lawsuit, Acting General Counsel Gwendolyn Reams “withdraws” the case administratively, rather than closing the matter.14 This purportedly allows the General Counsel to bring the proposed lawsuit before the Commission again when, according to Burr and Box, it has a majority in place that will support 3 Press Release, U.S. Equal Employment Opportunity Commission, EEOC Announces Pilot Programs to Increase Voluntary Resolutions (July 7, 2020) 4 Id. 5 Update of Commission’s Conciliation Procedures, 85 Fed. Reg. 64079 (proposed Oct. 9, 2020) (to be codified at 29 C.F.R. pt. 1601 and 1626). 6 Id. Over the last several years, the EEOC’s conciliation efforts resolved less than half of the charges where a reasonable cause finding was made. Specifically, between fiscal years 2016 and 2019, only 41.23% of the EEOC’s conciliations with employers were successful. 7 Id. 8 See Congressional Review Act, 5 U.S.C. § 801. 9 S.J. Res., 117th Cong. (2021). 10 H.R.J. 33, 117th Cong. (2021). 11 Remarks on Signing Legislation Regarding Methane Pollution, Predatory Lending, and Employment Discrimination, Daily Comp. Pres. Doc. DCPD202100551 (June 30, 2021). 12 See Sept. 27, 2022 letter from R. Burr and V. Foxx to C. Burrows, at 2, management_and_bostock_letter.pdf. 13 Id. 14 Id.