©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 1 PART I: Agency Composition A Equal Employment Opportunity Commission Composition and Background The EEOC spent most of FY 2023 with its political leadership deadlocked in a 2-2 tie between Democrats and Republicans, and without a Senate-confirmed General Counsel. However, the EEOC ended FY 2023 with a 3-2 Democratic majority firmly in place, with Commissioner Kalpana Kotagal joining the Commission on August 9, 2023. Moreover, at the start of FY 2024, the EEOC’s complement of political leadership reached full-strength with the Senate’s confirmation of General Counsel Karla Gilbride. The high level of EEOC litigation and enforcement activity we observed in FY 2023 is a strong reminder that most of the EEOC’s operations are not subject to political considerations, are conducted with tacit or explicit bipartisan approval from its political leadership, and are left squarely in the hands of the EEOC’s career leadership and front-line staff in the various District Offices throughout the country. For example, EEOC career staff oversaw the spike in merits cases filed by the EEOC in FY 2023. The Commission’s Senate-confirmed leadership team includes five Commission members, each nominated by the President and confirmed by the Senate. The President designates one of the Commissioners as the Chair, and another Commissioner can be designated as the Vice Chair. The EEOC’s General Counsel is also nominated by the President and confirmed by the Senate. Of the five Commissioners, no more than three may be members of the same political party, a statutory requirement notionally promoting bipartisanship that outlives administration changes. At the start of FY 2023, the EEOC’s political leadership consisted of: 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). Commissioner Dhillon’s term expired in July 2022, 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. While Commissioner Dhillon could have kept her seat until the end of 2022, she resigned in November 2022, leaving the Commission with a 2-2 partisan split until the Senate’s confirmation of Kalpana Kotagal (Commissioner, Democrat) on July 14, 2023. While the Commissioners must vote on certain official actions of the Commission, Title VII confers on the EEOC’s Chair the sole responsibility “for the administrative operations of the Commission”.1 Thus, even with a 2-2 political deadlock on the Commission for most of FY 2023, Chair Burrows could exercise her broad, sole discretion in driving multiple aspects of the EEOC’s agenda, including hiring non-Senate-confirmed political appointees, hiring members of the career Senior Executive Service, and evaluating and managing the EEOC’s cadre of Senior Executives. In other words, the Chair is directly responsible for hiring and evaluating the performance of the 15 District Directors across the country, as well as other Senior Executives in the agency. Moreover, the Chair’s responsibility for the “administrative operations” of the EEOC includes the ability, exercised through the EEOC’s Chief Operating Officer, to allocate the EEOC’s budget to its various programs and operational efforts. While the Commission as a whole must vote on certain appropriations, the Chair has broad authority in making adjustments—both large and small—to how the Commission spends its money. And while the Commission has statutory responsibility for deciding when to commence or intervene in litigation against private sector employers, Title VII confers upon the General Counsel responsibility “for the conduct of litigation” by the EEOC.2 The Commission has previously delegated some of its authority to the General Counsel, but the extent of the delegation has changed over time. The Commission’s delegation of litigation authority was last modified in the waning days of the Trump Administration, effective January 13, 2021, keeping more control with the Commission. In particular, this modification provided for an initial review by the members of the Commission of the Office of General Counsel’s litigation recommendations, 1 See Section 705(a). 2 See Section 705(b)(1).
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