By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On January 14, 2021, the EEOC approved and issued newly updated procedures regarding its delegation of litigation authority and procedures, as well as its revised procedures for participating in cases as amicus curiae. These changes, first reported by us here, have been long-awaited and are a stunning change to the framework of how EEOC lawsuits get filed against employers.

The purpose of these now-approved procedures appears to be an effort to rein in many of the powers previously held by the EEOC’s General Counsel, and in turn the Regional Attorneys, who previously held considerable discretion over the types of lawsuits that would be filed by the Commission and the legal positions the EEOC would advance. Stated otherwise, it shifts that power and discretion to the five Commissioners themselves.

The new litigation procedures make it clear that it is now the Commissioners, and not the General Counsel, that will make the decisions to commence or intervene in litigation. According to the new procedures, the Commission has the ability to vote on all recommendations to litigate. The new procedures were approved by the Commission in a 3-2 vote.

Additionally, the updated amicus curiae procedures provide, among other requirements, that before the Commission participates as amicus curiae in any case, the General Counsel must submit to the Commission a detailed written memorandum describing the positions they propose to take as amicus curiae and must obtain the Commission’s authorization for all amicus participation at each stage of any judicial proceeding. The new amicus procedures were passed by the Commission in a 5-0 vote.

Implications For Employers

For many years, the EEOC General Counsel and the Commission attorneys in the field appeared to exercise broad discretion over the types of cases the EEOC would file, the theories of law that it would pursue, and the litigation tactics that it would employ. Moreover, since the General Counsel was also encouraged to delegate that authority to Regional Attorneys across the country, the result was a sometimes fragmented, district-by-district approaches to EEOC enforcement litigation. These new procedures bring that authority back to the Commissioners and may indicate a desire for a more cohesive and consistent approach to the Commission’s litigation.

The ongoing changes at the Commission are a must-watch for employers as the EEOC continues in its 2021 fiscal year, and we will be tracking the latest developments here.