Biden to Renominate EEOC Chair Burrows for a Third Term (1)

President Joe Biden will renominate Equal Employment Opportunity Commission Chair Charlotte Burrows to serve a third five-year term at the agency, the White House has confirmed.

As chair, Burrows has “focused on combating retaliation, ensuring that artificial intelligence and other technologies comply with workplace civil rights laws, and expanding employment opportunities for underserved communities,” the White House said in a Wednesday statement provided to Bloomberg Law.

Burrows was first nominated to the five-member independent commission by then-President Barack Obama in 2014 and was designated by the Biden administration as chair when she took office in 2021. Before joining the EEOC, Burrows was an associate deputy attorney general at the Department of Justice and had worked in the DOJ’s Civil Rights Division’s Employment Litigation Section.

Several Biden labor nominees, including for the EEOC, have faced a contentious path to confirmation in the Senate. Kalpana Kotagal, the president’s choice to fill the other vacant Democratic seat on the commission, as well as Karla Gilbride, Biden’s EEOC general counsel nominee, have both been awaiting confirmation for over a year.

Under Title VII of the Civil Rights Act of 1964, Burrows can extend her current term, which expires on July 1, until the end of the year while she goes through the confirmation process.

If Burrows isn’t confirmed by the time the Senate adjourns for the year, however, she would have to step down to await approval by the upper chamber in 2024. The last time her nomination came before the Senate in 2019, she was unanimously confirmed.

Though Burrows’ role as chair of the commission has technically put Democrats in charge of directing the EEOC’s agenda, the agency has been deadlocked due to a two-two partisan split and the failure of the Senate to confirm Kotagal as the fifth commissioner.

Without Senate confirmation for Kotagal or Burrows, the currently deadlocked commission could swing to a Republican majority in 2024.

Roger King, an attorney for the HR Policy Association, said he was surprised it took this long for the White House to renominate Burrows, given that there is already a vacant spot on the commission.

“We believe Leader Schumer is going to have a real challenge navigating confirmation of both the chair and at the same time Kalpana Kotagal,” he said in an interview.

King said “it particularly becomes a unclear picture” when looking at the number of vacancies for Democrat positions compared to Republican positions at other independent labor agencies. He noted that there aren’t many empty GOP slots Sen. Chuck Schumer (D-NY) could package with Burrows’ or Kotagal’s nominations to get them through the Senate — a strategy used in the past.

Lawmakers and advocates have expressed concern in recent months that the EEOC is not effectively carrying out its mission in prohibiting employment discrimination. They’ve applied pressure on commissioners to move forward with the regulatory process to clarify how it will enforce new protections for some workers.

Earlier this month, Sen. Bill Cassidy (R-La.) sent a letter to Burrows asking why, just 30 days before the Pregnant Worker’s Fairness Act was set to go into effect, the agency had not proposed any rulemaking on the legislation.

And in October, a Texas federal judge struck down the EEOC’s LGBTQ+ guidance, saying the agency improperly interpreted the US Supreme Court’s landmark Bostock v. Clayton County decision. The ruling came after Burrows faced criticism from the commission’s then-Republican majority for issuing guidance without a commission vote.