What You Should Know About EEOC and Modified Delegation of Litigation Authority

The Commission has modified the delegation of litigation authority from the Commissioners to the General Counsel, effective January 13, 2021.

Background

Congress, in Title VII of the Civil Rights Act of 1964, gave the Commission authority to commence or intervene in litigation against private sector employers to enforce the nation's employment discrimination laws.  Congress gave the Commission's General Counsel the responsibility to conduct such litigation.  The Commission had previously delegated some of the authority to initiate litigation to its General Counsel, as follows:  

• Beginning in 1995, as part of the EEOC's National Enforcement Plan, the Commission delegated its litigation authority, in certain cases, to the General Counsel.  
• In 2012 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.
• In 2016, the Commission again reaffirmed, with slight modifications, the delegation of litigation authority to the General Counsel in section IV of the Commission's Strategic Enforcement Plan (SEP) for Fiscal Years 2017 - 2021.
• In March 2020, the Commission revised the litigation delegation to require Commission approval for cases presenting issues where the Commission had taken a position contrary to precedent in the Circuit where the case would be filed, as well as cases where the General Counsel was proposing to take a position contrary to the precedent in the Circuit where the case would be filed.  For cases not clearly requiring Commission approval, the modification established a process of consultation between the General Counsel and the Chair to determine if they should be voted on by the Commission.  The modification also revoked its prior ratification of the General Counsel's authority to redelegate to the Regional Attorneys the authority to commence litigation.   As was the case previously, all cases requiring a major expenditure of resources require Commission approval, and, in addition, all cases alleging systemic or pattern or practice discrimination must receive Commission approval.  In addition, the requirement that each District Office submit a minimum of one case for Commissioner consideration each fiscal year was reinstated.

2021 Modification

The modified delegation is very similar to the delegation that was approved by the Commission in March 2020.  Most notably, it maintains the requirement that cases presenting issues where the Commission has taken a position contrary to precedent in the Circuit where the case will be filed, as well as cases where the General Counsel is proposing to take a position contrary to the precedent in the Circuit where the case will be filed, must be circulated to the Commission for a vote.  

However, for cases that do not fall under any of the delineated categories, the modified delegation requires transmittal of the case to the Commission for a 5-day review period, rather than consultation with the Chair.  If, during the review period, a majority of the Commissioners believe the case is appropriate for Commission approval, before filing the case, the General Counsel shall submit the case to the Commission for a vote .  

Please visit https://www.eeoc.gov/resolution-concerning-commissions-authority-commence-or-intervene-litigation-and-commissions-0 for a complete copy of the modified delegation.