Since being appointed as general counsel for the U.S. Equal Employment Opportunity Commission (EEOC) in October last year, Karla Gilbride has been using amicus briefs in high-profile employment law cases to reinforce the agency’s expanding litigation efforts.
Apart from enforcing regulations under the Pregnant Workers Fairness Act and workplace harassment guidance, these “friend of the court” briefs have been crucial, allowing the EEOC to contribute its point of view in discrimination cases where it is not directly involved.
Illustrating this, the agency recently deployed these briefs to address the U.S. Supreme Court’s new standard for showing harm in allegedly discriminatory job transfers. The briefs have also been used to challenge emerging liability issues related to AI-based workplace bias.
Currently, the EEOC has filed 13 amicus briefs, as of April 29 this year, according to its website. This shows an increasing trend considering the 38 briefs filed in 2023, indicating a substantial rise from the preceding year. This upward trend has coincided with an increase in the overall litigation numbers.
Gilbride’s arrival appears to be pushing these trends forward. Previously, she has taken on large corporations in employment cases during her tenure at Public Justice and Sanford Heisler Sharp LLP, and she has also combatted disability discrimination cases during her time with Disability Rights Advocates.
In August 2023, another significant development was the appointment of Commissioner Kalpana Kotagal, thus breaking the EEOC’s prior 2-2 partisan deadlock. This allowed a new Democratic majority to propel several regulatory and litigation priorities, including its largest litigation and its amicus briefs, which necessitate a majority vote from the panel.
This focus on amicus activity, which has seen a steady increase in recent years, is leading to a greater influence of the EEOC on a variety of litigations. For example, since Karla Gilbride assumed the EEOC top lawyer’s post, her office has addressed the nuances of Muldrow v. City of St. Louis, the biggest recent civil rights law case. The EEOC cited the Supreme Court’s ruling in the case, staging it as substantial and consequential for pursuing anti-discrimination lawsuits.
Furthermore, the EEOC argued on groundbreaking matters using amicus briefs such as AI discrimination at work, and the agency’s stance vis-à-vis affirmative action and DEI programs. These programs, and their potential implications, especially in conservative currents which contest them based on a 2023 Supreme Court decision, are issues that the EEOC continues to focus on, strongly advocating their continuation.
Keeping up with the emerging challenges, Gilbride corroborates that, as well as tackling AI bias, her focus includes combating hiring discrimination, barriers to the workforce, particularly for vulnerable workers such as younger or migrant laborers. She stands firm on protecting those who fear enforcing their rights on account of potential retaliation.
The ongoing litigation program at the EEOC presents a cross-industry selection of varied cases and employers that Gilbride proudly describes as a “very diverse docket.”
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