Robert J. O’Hara, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in the Bloomberg Law Daily Labor Report, in “EEOC Commissioner Charges Jumped in 2022 Amid Partisan Stalemate,” by J. Edward Moreno. (Read the full version – subscription required.)
Following is an excerpt:
Members of the US Equal Employment Opportunity Commission appear to be taking matters into their own hands amid a season of partisan gridlock at the workplace civil rights agency, issuing the most commissioner charges since at least 2015.
EEOC commissioners filed a total of 29 such charges in fiscal year 2022, up from just three in the previous year, according to numbers posted by the agency Thursday. The available data, which goes back seven years, shows a previous high of 17 commissioner charges in 2017.
Unlike traditional EEOC complaints that are most often initiated by victims of alleged discrimination, commissioners have the power to launch these targeted charges on their own, without informing their colleagues or seeking their approval, though the tool has traditionally been used sparingly.
The spike comes during a sluggish two years of commission action. From January 2020 to November 2022, the panel had a Democratic chair but a 3-2 Republican majority, and it now has a 2-2 split.
President Joe Biden’s nominee to fill a vacant seat on the commission is still pending in the Senate. Without a voting majority it is difficult for either side to push their policy priorities. …
‘Precursor of Things to Come’
Of the 29 commissioner charges, 12 were filed by Republican Commissioner Andrea Lucas. The two Democrats on the commission, Chair Charlotte Burrows and Vice Chair Jocelyn Samuels, filed eight charges each. Republican Commissioner Keith Sonderling filed one.
Only three charges were filed in FY 2021 and 2020 each year. In FY 2019, there were nine Commissioner charges and 10 the year before that.
Commissioner charges are often used to add new charges to pre-existing cases brought by alleged victims or in systematic cases where victims may not have a way to easily learn about the discrimination, such as pay equity cases and discrimination involving artificial intelligence tools used by employers for recruitment and hiring.
As with any charge, an EEOC district office will investigate a commissioner charge.
“It can be a faster way to focus on issues of individual concern, particularly where there is no support from the other Commissioners,” Robert O’Hara, a partner at Epstein Becker & Green PC said by email. “However, the burden falls on the field and EEOC investigators to work the charges. Resources are limited but the field takes Commissioners charges seriously.”
