On January 21, 2021, President Biden designated Commissioner Charlotte Burrows (D) as the new chair of the U.S. Equal Employment Opportunity Commission (EEOC or “the Commission”).  Burrows replaces outgoing Republican Chair Janet Dhillon, who will continue to serve out her term as a commissioner.  At the same time, the president designated Commissioner Jocelyn Samuels (D) as the Commission’s vice chair, replacing Republican Vice Chair Keith Sonderling, who will also continue to serve as a commissioner.  While commissioners must be confirmed by the U.S. Senate, the authority to designate the chair and vice chair rests solely with the president.

The chair of the EEOC has significant authority over the administration and day-to-day functions of the agency, including its investigatory and enforcement activities, and in setting the Commission’s agenda.  That said, major policy initiatives require the approval of a majority of the Commission.  This may, in the near term, present some challenges for Burrows insofar as the five-member Commission currently comprises two Democrats and three Republicans.  The current make-up of the Commission is as follows:

• Chair Charlotte Burrows (D), whose term expires on July 1, 2023
• Vice Chair Jocelyn Samuels (D), whose term expires on July 1, 2021
• Janet Dhillon (R), whose term expires on July 1, 2022
• Vice Chair Keith Sonderling (R), whose term expires on July 1, 2024
• Andrea Lucas (R), whose term expires on July 1, 2025

The lack of a Democratic majority may limit the ability of the Commission to move forward immediately on significant policy matters, issue new guidance or regulations, or revisit policies and priorities of the prior administration. 

Additionally, in the final days of the Trump administration, the Commission adopted changes to the delegation of litigation authority to the agency’s general counsel.  Previously, the general counsel had the authority to file certain cases in federal court without the approval of the Commission.  Under procedures finalized in January 2021, the Commission voted to limit that delegation, such that if three members of the Commission call for a vote on a proposed litigation matter, it must be put before the full Commission for approval.  This means, as a practical matter, that three commissioners who do not wish a case to be filed can effectively veto it by insisting upon a vote and voting to disapprove filing suit.

Upon attaining a Democratic majority, it is likely the EEOC will seek to revisit several Trump-era proposals, including regulations regarding conciliation procedures, which were finalized in January, as well as guidance documents and other matters that were approved on party-line votes.¹  More broadly, we can expect that with a Democratic majority, the EEOC will revisit regulations concerning permissible incentives for workplace wellness programs under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, the restoration of pay data reporting requirements instituted during the Obama administration, and a host of other matters ranging from guidance on harassment in the workplace to the civil rights and non-discrimination implications of artificial intelligence and “big data” in the workplace.  Littler’s WPI will continue to keep you apprised of significant developments as they occur.