The leader of the U.S. workplace anti-discrimination agency is pursuing a policy shift that could slow litigation against companies long after President-Elect Joe Biden takes office.
Janet Dhillon, the chair of the Equal Employment Opportunity Commission, has recently circulated a proposal to staff that would strip the general counsel’s authority to file lawsuits without a commission vote, according to current and former agency officials who requested anonymity to discuss internal proceedings.
Under the proposal, the agency’s commissioners would first have to approve any litigation, rather than that authority being delegated to the general counsel.
Dhillon, who was appointed by President Donald Trump, floated a similar proposal last year, provoking an outcry from advocates, who said that requiring the approval of the agency’s commissioners for even run-of-the-mill litigation would inhibit enforcement of civil rights law.
“Making workers wait for vote by political appointees on their personal case after they have already gone through all the required EEOC procedures is unconscionable,” dozens of advocacy groups and plaintiffs’ law firms including Oxfam America, the Southern Poverty Law Center, and the National Women’s Law Center wrote in a letter to Dhillon in July 2019.
GOP Majority Until 2022
The commissioners opted then not to hold a formal vote on the proposal, and instead, by a 2-1 party-line vote in March, approved a more modest change that gave the EEOC chair some discretion over which cases require a full commission vote.
An EEOC spokesman declined to comment in response to an inquiry Friday.
Revoking the general counsel’s litigation authority has been a goal of industry groups such as the U.S. Chamber of Commerce. During the George W. Bush administration, from 2005 to 2009, all litigation involving the Americans with Disabilities Act required a full vote.
While Biden, once in office, is likely to designate one of the EEOC’s Democratic commissioners to become the chair, Republicans are slated to maintain their 3-to-2 majority on the commission, which enforces federal workplace anti-bias laws, until at least July 2022.
That means they could vote to reject any litigation proposed by the agency’s general counsel that they disapproved. Dhillon, a former general counsel for several companies, has said she plans to serve the rest of her term as commissioner.
The EEOC’s current general counsel, Sharon Gustafson, is a Trump-appointed attorney who represented the plaintiff in a landmark pregnancy discrimination case; her term runs until 2023.
The proposed change to the commission’s rules is one of many attempts underway by Trump administration officials to finalize policies that could hamper the efforts of their Democratic replacements next year.
–With assistance from Benjamin Penn.
Top Photo: The Equal Employment Opportunity Commission (EEOC) seal is displayed on a window at the headquarters in Washington, D.C. Photographer: Andrew Harrer/Bloomberg
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