Editor's Note
Discrimination Claims Can Go Forward Without an EEOC Quorum
Below is a great discussion of what the leadership of the EEOC can and can't do without a quorum, which they sort of don't have right now. I say "sort of" because the termination of sitting EEOC commissioners before their term may be illegal and a court may reinstate them. We'll see what happens.
In the meantime, EEOC commissioners have nothing to do with most employee discrimination claims and lawsuits. There are several reasons for this.
First, states have their own version of the EEOC, which have joint jurisdiction over discrimination and harassment claims. In California, it's the Civil Rights Division (formerly the Department of Fair Employment and Housing). Joint jurisdiction means that either the state or the federal agency can administer claims for discrimination that happens in that state.
Before an employee can file a discrimination lawsuit in the courts, they have to "exhaust their administrative remedies." This means filling out an online form and submitting it to either the EEOC or the equivalent state agency. What happens next is the employee decides whether to ask the agency to investigate the claim or request a right to sue letter.
Almost nobody asks the agency to investigate the claim. That's because none of the agencies are funded and set up to handle the number of discrimination and harassment claims that are made. So even if someone asks them to investigate, they may or may not be able do it. And even if they do investigate, the employee usually has to go to court anyway unless the case settles at the EEOC stage.
When the EEOC investigates, they determine whether there is "reasonable cause" for the claim, which just means the EEOC investigator found evidence to support the claim. And even when the EEOC determines no reasonable cause, it doesn't mean there isn't a viable case. It just means the EEOC investigation was not conclusive one way or the other, which is most claims based on a limited investigation.
At that point, the case either goes to mediation to try to settle or the EEOC decides if it will bring a lawsuit on behalf of the employee. It's pretty rare for the EEOC to file litigation, not because there aren't valid claims but because the EEOC doesn't have the resources. It's been that way for a long time because politics.
From the employee's perspective it doesn't make sense to go through administrative investigation because of the extra time it takes and the fact that most claims end up with a lawsuit eventually anyway. Most people just get their right to sue letter and start with the lawsuit.
So, why make people go through the motions of filing the administrative claim? Because data. Both the EEOC and state agencies collect data on claims so they can understand what types of claims are most common, watch trends in the types of claims brought, and track how many claims are made. It helps support their budget requests, informs where guidance or clarification may be needed in the law, and makes the employment law geeks like me happy. Here's where you can find all that data (at least for now).
When employees go through the state process, the EEOC gets the data, but doesn't have any other involvement in the claim.
There are also good reasons to prefer state court to federal court when you are an employee; the big one is damage caps. In federal employment discrimination claims the law limits the amounts an employee can recover for compensatory damages (the emotional distress of being discriminated against) and punitive damages (additional money awarded to punish the employer for discriminating). The caps are outdated and relatively low and depend on the employer size. So as a practical matter, most employees head to state court where there aren't damage caps. (In either state or federal claims, employees can still recover back pay, front pay, and attorneys' fees as well as compensatory and punitive damages. The caps just relate to compensatory and punitive damages.)
Not having a quorum makes it difficult for the EEOC to do a range of things, but it doesn't make much difference in discrimination lawsuits.
- Heather Bussing
In the first week of the Trump administration, along with a flurry of executive orders, the President appointed Andrea Lucas as the Acting Chair of the Equal Employment Opportunity Commission (“EEOC”). Within days, he suddenly terminated two of the three sitting EEOC Commissioners (Charlotte Burrows and Jocelyn Samuels)—prior to the expiration of their terms—leaving only Ms. Lucas and one remaining Commissioner at the EEOC.
The President then terminated the sitting General Counsel Karla Gilbride and appointed a new Acting General Counsel—Andrew Rogers—in her place.
The EEOC was created by Congress through the enactment of Title VII of the Civil Rights Act of 1964. The Commission is intended to have five Commissioners, including a chair. In order to act, the Commission needs a quorum of three commissioners, which it currently does not have.
During our January 30 webinar, Trump Reframes the EEO Agenda: What Does It Mean for Your Business?, we discussed the fact that these terminations left the EEOC without the necessary number to constitute a quorum. This raised a question as to how the EEOC would proceed.
How Will the EEOC Proceed?
Perhaps to quiet speculation that the agency would be“frozen,” on February 4, the EEOC published an update titled: “The State of the EEOC: Frequently Asked Questions” attempting to address many of the inquiries that legal practitioners raised in the wake of these sweeping changes.
That update stated:
- None of the previously issued executive orders“shut down” the EEOC. The update reiterated that the Commission is a product of statutory creation, not executive authority, and would thus continue to operate.
- Despite the lack of quorum, “the EEOC remains open for business.” The EEOC proclaimed that it will continue to intake, process, investigate, and issue resolutions of charges of discrimination.
- The lack of quorum will not impact parties currently engaged in the EEOC process (investigation, conciliation, or settlement).
- The EEOC can continue to file lawsuits without a quorum.
What Can the EEOC Do?
Litigation Remains Possible but Limited
The final point above raises a few interesting questions.
Currently, the full Commission (with a quorum), must decide to commence or intervene in: 1) cases involving systemic or widespread discrimination; 2) cases expected to involve major expenditures of funds and resources; 3) cases presenting issues on which the Commission has taken a position contrary to precedent in the Circuit; 4) cases presenting issues on which the General Counsel proposes to take a position contrary to precedent in the Circuit; and 5) “other cases reasonably believed to be appropriate for Commission approval in the judgment of the General Counsel” including “cases that implicate areas of law that are not settled and cases that are likely to generate public controversy.”
Thus, the Commission must have a quorum in order for them to vote to take up any of the above cases.
For cases that fall outside one of these defined categories, the General Counsel is typically required to submit those actions to the Commission for approval before proceeding to act. However, absent a quorum and by operation of delegated authority, the Commission grants to the General Counsel the authority to file such cases independently following a brief notice period.
In short, the current Commission can bring “small” or individual cases and can certainly continue to investigate claims. However, it is not clear that it can bring large or “systemic” cases, those may have to wait until the appointment and approval of new Commissioners.
What Does This Mean for Your Business?
- Don’t expect to see new rules or amendments to guidance any time soon. Those actions will require a quorum.
- Don’t expect the EEOC to file claims of“systemic” discrimination.
- Do expect that employees can continue to file complaints and the EEOC will continue to investigate. The investigation of individual or even class claims will not cease.
