The EEOC’s Increase in Commissioner Charges

Darrell VanDeusen
Darrell VanDeusen

Early in my law practice, one of the first matters I worked on was an EEOC Commissioner’s charge.  It had been filed against a public school system that announced its goal for new teacher hires in the coming school year was an average of two years’ experience.

An EEOC Commissioner initiated the charge and an investigation ensued as to whether that stated goal was in fact a proxy for either intentional age discrimination or created an adverse impact that violated the Age Discrimination in Employment Act (ADEA).  The federal government was to the rescue.

My next 18 months were consumed by this investigation and the EEOC’s seemingly unlimited resources.  The time suck and the expense to defend was substantial.   The school district had to hire a labor economist to perform all sorts of statistical analyses.  I learned all about one-tail and two-tail regression analysis, along with figuring out standard deviations and what they meant. For someone like me, who is not ashamed to say “no one told me there’d be math…”  there was a tremendous learning curve here. 

Don’t worry, we aren’t doing math today.  I remembered that experience when I read a recent Bloomberg report that the number of EEOC Commissioner charges has increased significantly in recent years – from both Democrat and Republican Commissioners.

First, some background. At its top, the EEOC consists of five commissioners appointed by the President, with advice and consent from the Senate, on five year staggered terms.  No more than three commissioners can be from the political party in the White House.  This is the same arrangement as at the NLRB, by the way. 

Sometimes there’s a vacancy for an extended period while folks wrangle over the next appointee for a vacant seat.  For example, there was a 2-2 party split at the EEOC until Commissioner Kalpana was appointed in August 2023.

Anyone reading this blog likely knows the way individual charges are filed with and investigated by the EEOC.  If the EEOC finds probable cause to believe discrimination, harassment or retaliation has occurred – and conciliation fails – the EEOC’s regional attorney can file a lawsuit on behalf of itself and the allegedly aggrieved employee.  In fiscal year 2023 the Commission sued employers 158 times, the highest number in the last five years.  This sort of information can be found in the EEOC’s annual performance report.

But Commissioners individually have the right to decide to initiate an investigation on their own, without the need for a vote by, agreement from, or consensus with the other Commissioners.  And anyone can ask that a Commissioner file a charge.  In fiscal 2023, 35 commissioner charges were filed, while 29 were filed in fiscal 2022.

The EEOC does not release to the public information about the employer named or the subject of a Commissioner’s charge; indeed, a Commissioner could face civil or criminal penalties for doing so.  Employers are not prohibited from announcing it but, frankly, why would they?

Perhaps the most interesting thing about the EEOC’s filings the past two fiscal years is the fact that Commissioner Lucas, one of its Republican members, filed the most Commissioner charges:  15 in 2023 and 12 in 2022.

Keeping with the continued polarization in the country, and based on general reporting, it seems likely that many of these current charges involve challenges to DEI issues coming from one side of the field. Of course, there’s still the more “traditional” focus as well:  last September, the EEOC sued Tesla, alleging a hostile work environment for Black workers in California. The complaint established that the claim came about through a Commissioner charge filed by EEOC Chair Burrows.

The takeaway here?  The full force of the federal government – even when it comes from a single individual – will come with shock and awe. It will be costly, in time and money.  Employers are well served by striving to maintain a workplace free from discrimination regardless of the protected classifications involved. 

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