OFCCP’s General Counsel’s power to file suits has been scaled back
On March 10, 2020, EEOC modified the delegation of litigation authority and outlined situations where Commission approval is required prior to initiating litigation. Title VII gave the Commission authority to commerce or intervene in litigation against private sector employers to enforce discrimination laws. In 1995, as part of the agency’s National Enforcement Plan, the agency delegated its litigation authority, in certain cases, to the General Counsel. In 2012 and 2016, EEOC reaffirmed, with slight modifications, the original 1995 delegation authority.
The current modification is similar to previous version with the following updates to promote efficient and effective exercise of the agency’s litigation authority.
- Commission approval is required for cases presenting issues where the Commission has taken a position, or the General Counsel is proposing to take a position, contrary to precedent in the Circuit where the case will be filed.
- All cases alleging systemic or pattern or practice discrimination must receive Commission approval.
- The requirement that each District Office submit a minimum of one case for Commissioner consideration each fiscal year has been reinstated.
All other litigation that does not fit into the above categories continues to be delegated to the General Counsel but establishes a process for consultation between the Chair and the General Counsel to decide if any other cases are appropriate for agency approval. The General Counsel is required to “keep the commissioners regularly apprised” of appeals involving the agency, particularly in case “that implicate novel legal issues, involve matters of first impression in that circuit, are likely to generate public controversy, or involve issues on which the commission has not taken a position by vote of the commissioners.”