United States: The Equal Employment Opportunity Commission Changes Its Internal Procedures For Selecting Which Cases To Litigate

At the conclusion of the EEOC's administrative process, if a discrimination Charge has not otherwise been resolved, the Agency issues an administrative decision finding either merit to the Charge or not.  If the Agency concludes that the Charge has merit, then by statute it must engage in formal Conciliation with the Respondent/Employer in an effort to settle the matter without litigation.

If Conciliation efforts fail, then the EEOC makes an administrative decision whether to file a lawsuit in federal court (or intervene in such a lawsuit if filed first by the Charging Party).  Previously, significant authority to make these litigation decisions was delegated by the Commission to the EEOC's General Counsel and/or its Regional Attorneys.

In January 2021, the EEOC approved a Resolution reassigning much of this previously delegated litigation authority to the five Commissioners.  U.S. Equal Emp. Opportunity Comm'n, Resolution Concerning the Commission's Authority to Commence or Intervene in Litigation and the Commission's Interest in Information Concerning Appeals (Jan. 13, 2021), https://www.eeoc.gov/resolution-concerning-commissions-authority-commence-or-intervene-litigation-and-commissions-0. In summary, this decision to commence litigation or not must now be made by a single-majority vote of the five Commissioners in designated types of cases, including all pattern or practice, i.e. class action type, cases.  In all other cases, the decision whether to litigate may be put to such a majority vote of the Commissioners.

This significant change in internal EEOC procedure may raise the opportunity for a "final appeal" by the Respondent/Employer directly to the five politically appointed Commissioners, advocating why the Commission should not use its limited litigation budget to litigate this particular matter.  If the Respondent/Employer believes that the EEOC's Regional Office failed to engage in good faith Conciliation efforts to settle the matter, it would appear that this issue could also be addressed in a "final appeal" to the Commission.  The Commission publishes on its website the outcome of matters upon which its members vote, but historically there has been a significant delay in publishing these results.  https://www.eeoc.gov/commission-votes.

It is yet to be determined whether this potential "final appeal" will be utilized by Respondent/Employers and if so, whether such appeals will have any success.

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