As has become characteristic of the agency, the U.S. Equal Employment Opportunity Commission went into overdrive in September, the last month of its fiscal year, filing 40 lawsuits — close to half of its annual total.
Still, the number of suits was moderate for the EEOC; after predictions that the agency would see increased activity in FY 2022, lawsuits actually dipped overall, with 94 suits filed compared to 114 in FY 2021. And the agency filed 59 lawsuits in September 2021 — nearly 50% more than last month.
“The pieces seemed to be in place for a more robust year-end filing spike once again in FY 2022, but the numbers do not show that,” law firm Seyfarth Shaw wrote in a blog post.
The year ending with a whimper may be attributable to political deadlock at the agency, which retains its 3-2 Republican majority. As Democratic commissioners are generally considered more employee-friendly, it stands to reason that a Republican majority would tend to vote down more suits.
President Joe Biden nominated Kalpana Kotagal in April, and her confirmation would shift the agency to a 3-2 Democratic majority — and likely an uptick in lawsuits. But Kotagal’s nomination has stalled in the Senate; the last action was a May review from the Committee on Health, Education, Labor and Pensions, which failed to report favorably.
As a result, Republican Commissioner Janet Dhillon, whose term expired in July, is able to serve through December under a Title VII holdover provision. It remains unclear whether the Senate will move on Kotagal’s nomination.
If the political makeup of the Commission does turn, however, employers should expect far more action from the agency, said Donna McElroy, labor and employment member at Dykema.
Once that shift occurs, stakeholders will see more lawsuits, McElroy said. “They got an increase in their budget somewhere around 11%.” The budgetary increase always seems to signal the agency is going to be more active, she added.
McElroy said she suspects one big focus for EEOC in the coming year will be LGBTQ discrimination, and that the agency will double down on its pursuit of such cases despite its Bostock guidance twice being shut down in court — recently by a judge in Texas, and prior to that, by one in Tennessee. “I don’t see the EEOC backing off of that issue,” she said.
Other issues McElroy suspects will get more attention include pregnancy discrimination, equal pay for protected categories beyond sex, and age discrimination involving AI and other technology.
The last of these, among other tech concerns, received particular attention at EEOC’s third and final listening session in advance of preparing its next strategic enforcement plan. Its previous two sessions focused on systemic racism and discrimination and harassment of immigrant workers of color.
Beyond lawsuits, EEOC’s employee-friendly approach may involve removing some elements that ease the process for employers. For example, in summer 2021, Congress narrowly passed, and Biden signed, a joint resolution rescinding a Trump-era rule that would have increased EEOC’s information-sharing requirements during conciliation.
That rule would have allowed EEOC to share the identity of the complainant, a written summary of the facts of the case, its legal bases for finding discrimination and the criteria it would use to identify class-action members. The rule was important in helping employers — and employers’ attorneys — understand why they should settle, McElroy said.
Ultimately, while some of the issues EEOC will likely focus on may be easier to guess, when the politics of the Commission will shift is the bigger question — one that remains firmly up in the air.
“If I could predict with any accuracy what the Senate would do, I would write the book and retire,” McElroy said.