Democrats have regained a majority on the EEOC with the confirmation of Kalpana Kotagal, a long-awaited development that will break the panel’s partisan deadlock and likely propel stalled regulatory work forward.
Kotagal was narrowly confirmed by the Senate 49-47 last week, more than a year after her original nomination. As the third Democrat on the five-member commission, she’ll give the EEOC a Democratic majority for the first time since President Joe Biden took office—lasting until at least the end of 2023.
The Democratic members of the commission tasked with enforcing Title VII of the 1964 Civil Rights Act have sought to tackle issues like artificial intelligence bias, pay disclosures, and LGBTQ+ rights during the Biden administration. But their work has been limited as the agency had a Republican majority for the first year and a half of Biden’s term, and has been split between two Republicans and two Democrats since November.
“There will be an agenda that is consistent with the values of the Democratic administration,” said Chai Feldblum, a former Democrat EEOC commissioner during the Obama and Trump presidencies. “The EEOC, even as an independent agency, still reflects the values of the current administration. That’s what it’s supposed to do.”
Disclosures and Guidance
Though the agenda of the EEOC is set by a presidentially-designated chair, currently Democrat Charlotte Burrows, the commission must take a majority vote on all new rulemaking.
Without a majority on the commission, the chair spends a lot of time wrangling votes just to get work done, said Victoria Lipnic, a former acting Republican EEOC chair. With a majority, policy moves more quickly, she said.
The EEOC has failed to publish an official regulatory agenda for over two years, a requirement it hadn’t previously missed since 1994.
The commission is expected to move on its long-awaited sexual harassment guidance with its new majority.
The proposed guidelines, which have been in the works since 2016, were reportedly held up in the White House review stage, due to partisan disagreements within the Trump administration over LGBTQ+ workers.
“We had done a lot of work on getting a new anti-harassment guidance out,” said Feldblum, who left the commission in 2018. “It went really quite far, but then it couldn’t get through, so I certainly hope they pick that up again.”
Expanding existing pay disclosure requirements for employers, in order to help zero in on race and gender pay discrepancies, are also a priority for Democrats, according to employment attorneys and EEOC observers.
Business groups have historically opposed pay data disclosures, claiming that they are expensive and burdensome for employers.
Lipnic said she could see the agency pursuing two paths.
The first is expanding the EEO-1 form, which currently requires private sector employers with 100 or more employees to submit demographic data to the commission, using the Paperwork Reduction Act. The agency halted pay data collection in 2019.
The other path, she said, is to undergo an independent rulemaking procedure, which would include public comment periods.
“Business groups, I think, would challenge it if it’s done under the Paperwork Reduction Act, but nevertheless, that’s the fastest means to add a new component,” Lipnic said.
Litigation Goals
Another major change anticipated by EEOC observers is a shift that would return more litigation power to the commission’s general counsel.
A Republican-controlled commission in 2020 reversed a 1990s era policy that had delegated power to the general counsel’s office when approving cases to be filed in federal district court. The EEOC claimed that commissioners needed to regain a more active role in litigation matters.
The move drew criticism from the Democratic members of the commission, particularly Burrows, who said it could slow the agency’s litigation efforts by increasing review of routine cases.
With Democrats back at the helm, they are likely to reinstate the 1990s policy, said Andrew Maunz, a former EEOC legal counsel and attorney at Jackson Lewis in Pittsburgh. “I think they’ll likely give more authority to the general counsel and the regional attorneys,” Maunz said.
“I think to the extent there will be cases that the commissioners still vote on, I think this majority will be much more likely to pursue novel theories or push the law,” he added.
‘Flurry of Activity’
Despite the partisan divide that’s hamstrung the EEOC in some ways, commissioners have also found room for agreement, including on the need for regulation of AI tools in hiring and employment, which has emerged as a major goal.
Republican Commissioner Keith Sonderling has said AI is a top priority.
“They’re going to do something on AI, I think the Democratic majority will be there, but they’ve also been working with Sonderling,” said Larry Lorber, a labor and employment partner at Seyfarth Shaw LLP.
The biggest current AI-related question is if the commission will decide to vote to push for adjustments to the Uniform Guidelines on Employee Selection Procedures to include automated tools, Lipnic said.
These guidelines, which were adopted by the EEOC in 1978, serve to determine if a test or selection procedure used in hiring was in compliance with Title VII.
While the Democrats have the majority for now, it remains to be seen how long it will last.
Chair Burrows’ term expired earlier this month. The Senate must reconfirm her before it adjourns at the end of the year.
Karla Gilbride, Biden’s pick for general counsel of the commission, has been awaiting confirmation for over a year, leaving career staff in charge of the office.
The agency will likely move very quickly in the coming months in case Burrows’ nomination gets held up in a contentious confirmation process, Lorber said.
“I think you’re going to see a flurry of activity from whenever [Kotagal] gets sworn in, through the fall,” he said.
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