2 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP and, upon the request of a majority of the Commissioners, the General Counsel would be required to submit the matter to the Commission for a vote. Even so, consistent with previous years, in FY 2023 the vast majority of litigation matters presented to the Commission for a vote were approved on a bipartisan basis. But once Commissioner Kalpana Kotagal joined the Commission on August 9, 2023, for the first time during the Biden Administration, Chair Burrows was able to take advantage of her 3-2 Democrat majority to bring politically contested matters before the Commission for a vote. One of Commissioner Kotagal’s first votes was contributing to a 3-2 Democratic majority vote approving the EEOC’s Strategic Plan. Other 3-2 votes on policy matters that occurred towards the end of FY 2023 included approval of the EEOC’s Strategic Enforcement Plan3 (see infra Part II), taking steps towards moving forward with issuing the Commission’s enforcement guidance on harassment in the workplace,4 submission of the Commission’s formal regulatory agenda, 5 approving a Memorandum of Understanding with the Department of Labor’s Wage Hour Division,6 issuing a Notice of Proposed Rulemaking implementing rules pursuant to the Elijah E. Cummings Federal Employee Antidiscrimination Act of 2020, and even a procurement matter relating to enhancing EEO-1 data collection framework. Consistent with the Commission’s usual practice of filing most of its district court litigation towards the end of the fiscal year in September, it was unsurprising to see the Commission voting on a relatively large number of litigation matters following Commissioner Kotagal joining the Commission in August 2023. While the vast majority of these votes were approved on a bipartisan basis, of the votes to initiate federal district court litigation that we know7 that Commissioner Kotagal participated in during FY 2023, 22% were approved with a 3-2 vote, with the three Democrats on the Commission voting to approve and the two Republicans voting to disapprove. And of the 11 votes regarding the EEOC’s filing of an amicus brief in FY 2023 that we know that Commissioner Kotagal participated in, 18% were approved with a 3-2 Democratic majority. In public comments, Chair Burrows has long expressed her desire to revisit the Commission’s litigation delegation processes. Granting greater leeway for the Office of General Counsel, including career staff, as well as Chair Burrows’ current ability and willingness to exercise her 3-2 Democratic majority, means that in 2024, we are more likely to see the Commission approve federal district court litigation and amicus filings that have more-partisan implications. B EEOC Staffing Chair Burrows and her staff are responsible for advocating before Congress for increases to the EEOC’s budget, and the Chair is also responsible for deciding exactly how the EEOC spends additional money appropriated by Congress. During the Biden Administration, the EEOC has received significant budget increases, and Chair Burrows has made significant investments in hiring front-line enforcement and litigation personnel. The EEOC’s headcount reached 2,173 full-time equivalent employees by FY 2023’s end, marking a 6.47% increase from its 2,041 FTEs at the end of FY 2022. In FY 2023, the EEOC made a whopping 493 hires, 338 (69%) of which were in front-line positions (that is, investigators, mediators, attorneys, and administrative 3 See Christopher Kelleher, Rachel See, Christopher DeGroff, and Andrew Scroggins, Behind the EEOC Curtain: EEOC’s New Strategic Enforcement Plan Reveals Agency Priorities, Workplace Class Action Blog (Sept. 21, 2023), https://www.workplaceclassaction.com/2023/09/behind-the-eeoccurtain-eeocs-new-strategic-enforcement-plan-reveals-agency-priorities/#. 4 See Emily Miller and Rachel See, EEOC Releases Draft Enforcement Guidance on Workplace Harassment and Invites Comment, Seyfarth News and Insights (Oct. 10, 2023), https://www.seyfarth.com/news-insights/eeoc-releases-draft-enforcement-guidance-on-workplace-harassment-andinvites-comment.html. 5 See Christopher DeGroff, James Nasiri, and Rachel See, EEOC Adopts 2022-2026 Strategic Plan With an Emphasis on Large-Scale Litigation, Improving Internal EEOC Processes, Workplace Class Action Blog (Aug. 23, 2023), https://www.workplaceclassaction.com/2023/08/eeoc-adopts2022-2026-strategic-plan-with-an-emphasis-on-large-scale-litigation-improving-internal-eeoc-processes/. 6 See Rachel See, Christopher DeGroff, and Andrew Scroggins, EEOC and DOL Join Forces – What the Alliance Means for Employers, Workplace Class Action Blog (Sept. 18, 2023), https://www.workplaceclassaction.com/2023/09/eeoc-and-dol-join-forces-what-the-alliance-means-for-employers/. 7 Since November 2019, votes of the Commission have been published on its web page. However, there is a delay in the Commission voting on particular matters and the posting of the votes, and, from time to time, the posting of individual matters is further delayed to preserve confidentiality.
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