Resolution Concerning the Commission's Authority to Commence or Intervene in Litigation and the Commission's Interest in Information Concerning Appeals

WHEREAS, Congress authorized the Commission to commence or intervene in various forms of employment-related litigation;

WHEREAS, Congress made the EEOC General Counsel responsible for the conduct of such litigation;

WHEREAS, in 1995, as part of the EEOC's National Enforcement Plan, the Commission delegated its litigation authority, in certain cases, to the General Counsel;

WHEREAS, in 2012, and again in 2016, as part of the EEOC's Strategic Enforcement Plan, the Commission reaffirmed, with slight modifications, the 1995 delegation of litigation authority to the General Counsel;

WHEREAS, on March 10, 2020, the Commission modified the Strategic Enforcement Plan to ensure faithful execution of, and to better execute, the Commission's authority to commence or intervene in litigation; and to promote the efficiency and effectiveness of the EEOC's enforcement of the law through litigation.

WHEREAS, the Commission's delegation of its litigation authority to the General Counsel resulted, particularly in recent years, in the Commission approving the commencement of or intervention in a small percentage of litigation; from fiscal year 2009 to fiscal year 2020, the Commission approved 157 of the 2,026, merits suits filed by the EEOC;

THEREFORE, BE IT RESOLVED that the Commission modifies the delegation of litigation authority to the General Counsel in the Strategic Enforcement Plan for Fiscal Years 2017 to 2021, found at IV.A, Continued Delegation of Authority, and IV.A.2, Litigation in the following way;

THEREFORE, BE IT FURTHER RESOLVED that the Commission shall execute its authority to commence or intervene in litigation as follows:

1. The Commission shall decide to commence or intervene in the following litigation:
   1. Cases involving an allegation of systemic discrimination or a pattern or practice of discrimination;
   2. Cases expected to involve a major expenditure of agency resources, including staffing and staff time, or expenses associated with extensive discovery or expert witnesses;
   3. Cases presenting issues on which the Commission has taken a position contrary to precedent in the Circuit in which the case will be filed;
   4. Cases presenting issues on which the General Counsel proposes to take a position contrary to precedent in the Circuit in which the case will be filed;
   5. Other cases reasonably believed to be appropriate for Commission approval in the judgment of the General Counsel. This category includes, but is not limited to, cases that implicate areas of the law that are not settled and cases that are likely to generate public controversy;
   6. All recommendations in favor of Commission participation as amicus curiae;
   7. A minimum of one litigation recommendation from each District Office each fiscal year, including litigation recommendations based on the above criteria.
2. The General Counsel shall transmit any cases that do not fit directly within the criteria of paragraph I above to all the Commissioners for a five-business day review period. If, during the five business days, a majority of the Commissioners notifies the General Counsel and the other Commissioners that the case should be submitted to the Commission for a vote, before filing the case, the General Counsel shall submit the case to the Commission for a vote.
3. For any cases that are not brought to the Commission for a vote either under paragraph I or paragraph 2 above, the Commission delegates to the General Counsel the authority to determine whether to commence such cases.
4. In instances where the Commission lacks a quorum, the Commission delegates to the General Counsel authority to file cases that would otherwise be brought to the Commission under paragraph 2 above. In such instances, the General Counsel shall provide five days' notice to the Commissioners, if any, before filing suit.
5. The Commission delegates to the General Counsel the authority to refer public sector Title VII, ADA, and GINA cases which fail conciliation to the Department of Justice, as well as the authority to redelegate this authority to Regional Attorneys.
6. For purposes of this resolution and delegation, "General Counsel" means: (I) pursuant to 42 U.S.C. § 2000e-4(b)(I), an individual appointed by the President with the advice and consent of the Senate; or (2) an individual performing the functions or duties of the vacant office under the provisions of the Federal Vacancies Reform Act.

THEREFORE, BE IT FURTHER RESOLVED that the General Counsel should keep the Commissioners regularly apprised of appeals where the EEOC is a party, with a particular emphasis on appeals that implicate novel legal issues, involve matters of first impression in that Circuit, are likely to generate public controversy, or involve issues on which the Commission has not taken a position by vote of the Commissioners.

Done this 13th day of January, 2021.

For the Commission

Janet Dhillon
Chair