Dive Brief:
- The U.S. Equal Employment Opportunity Commission approved by a 2-1 vote Thursday a resolution to permit its members to “commence or intervene” in almost all litigation, a move that could hasten the agenda of its Republican majority.
- Per the resolution, commissioners would have seven or five days to vote on most cases, depending on the type of litigation. EEOC’s general counsel would have discretion to commence only a small subset of cases without a vote, such as those related to recordkeeping and reporting requirements or those involving a settlement, consent decree or other resolution.
- In a statement, EEOC Chair Andrea Lucas said the resolution undoes acts of delegation spanning more than 30 years of the agency’s history; “The new resolution enables the Commission to directly execute that authority in the vast majority of cases, with the transparency and accountability of the Commission’s voting process.”
Dive Insight:
EEOC’s resolution could help the agency push forward with priorities in line with the civil rights agenda outlined by the second Trump administration, Scott Kelly, shareholder at Ogletree Deakins, told HR Dive.
Specifically, the commission could initiate a larger number of lawsuits targeting subjects such as American national-origin discrimination; discrimination related to workplace diversity, equity and inclusion programs; and matters involving biological sex as outlined in President Donald Trump’s 2025 executive order.
The move also could lead to more consistency in the agency’s litigation agenda, Kelly added, as the agency said the resolution is an attempt to curb past delegation to the general counsel. EEOC noted that the general counsel’s office would in turn “redelegate” litigation authority to regional attorneys, a practice that sometimes resulted in individual EEOC’s offices pushing specific types of lawsuits that other regions did not, Kelly said.
“From a compliance standpoint, it underscores what I see as another great example of how doing proactive risk audits would be a good practice to minimize legal risk,” he added, identifying hiring, pay, promotion, disciplinary and recordkeeping practices as potential targets for such audits.
Thursday’s vote is one of several consequential EEOC decisions made since the beginning of the year. Last week, the commission also voted to rescind its Biden-era workplace harassment guidance in a move decried by EEO Leaders, a group of former Democratic EEOC officials.
The same group also criticized EEOC’s Jan. 14 decision to remove procedures that required the agency to hold public discussions about certain enforcement decisions and provide a guaranteed amount of time by which members could review proposed actions such as the issuance of guidance and regulations or approval of lawsuits.
