A recent rise in investigations initiated by commissioners at the US Equal Employment Opportunity Commission (EEOC) indicates that members are actively pursuing issues important to them, regardless of the political composition of the commission. The EEOC’s five members filed a combined total of 35 commissioner charges in fiscal year 2023, a significant increase from the 29 filed in FY 2022, and a stark contrast to the three charges filed in both FY 2021 and FY 2020 during the pandemic. This surge coincided with an increase in total lawsuits filed by the commission, reaching 158 cases in FY 2023, the highest annual number since FY 2018.
Notably, Andrea Lucas, one of two Republican commissioners, led in filing these charges, having issued 15 in FY 2023 and 12 in FY 2022. The addition of Democratic Commissioner Kalpana Kotagal in August 2023 resolved a 2-2 partisan deadlock, enabling the majority party to more effectively steer the EEOC’s agenda. This shift has made self-initiated charges increasingly attractive for commissioners in the minority.
The partisan dynamics and recent judicial developments related to Title VII of the 1964 Civil Rights Act appear to have influenced the boost in commissioner charges. Jim Paretti, a labor and employment attorney at Littler Mendelson PC, highlighted the unique power held by individual commissioners to initiate these charges, irrespective of their party’s majority status.
Commissioner charges, often confidential unless disclosed by the involved company or through ensuing litigation, provide a powerful tool for tackling specific violations. For instance, a high-profile lawsuit against Tesla Inc. in September 2023 originated from a commissioner charge filed by Democratic EEOC Chair Charlotte Burrows, accusing the company of creating a hostile work environment for Black workers.
The EEOC has also focused on leveraging these charges to address its top priorities, as outlined in its strategic enforcement plan from September 2023. The commission’s commissioners initiated an increased number of charges amidst ongoing scrutiny from conservative groups challenging corporate diversity, equity, and inclusion (DEI) programs.
Nonnie Shivers, an attorney at Ogletree Deakins, attributes the hike in commissioner charges to the political split among the commissioners and the active solicitation of these charges. In FY 2023, the EEOC received 81,055 new discrimination charges from the public, reflecting a 10.3% increase compared to the previous year.
The detailed process for initiating a commissioner charge involves field offices evaluating individual requests and potentially forwarding them to commissioners. Democratic EEOC Vice Chair Jocelyn Samuels noted that these charges offer supplemental value when ongoing investigations uncover potential violations not covered by original allegations.
While commissioner charges have surged recently, historical data shows fluctuating numbers. For example, a 2010 report indicated 39 charges, compared to just one in 2003. EEOC General Counsel Karla Gilbride emphasized the importance of collaboration between commissioners and investigative staff, noting that these tools are meant to complement, rather than replace, the traditional charging system.
Overall, the recent hike in commissioner charges at the EEOC underscores the significant influence individual members wield in shaping the agency’s enforcement actions, even as broader debates over DEI programs and other workplace issues continue to unfold.