Resolution Concerning the Commission’s Authority to Commence or Intervene in Litigation

WHEREAS, in 42 U.S.C. § 2000e-5(f) and § 2000e-6, Congress authorized the Commission to commence or intervene in various forms of employment-related litigation;

WHEREAS, in 42 U.S.C. § 2000e-4, Congress made the EEOC General Counsel responsible for the conduct of such litigation;

WHEREAS, in 1995, as part of the EEOC’s National Enforcement Plan, the Commission delegated significant litigation authority, except for a limited set of cases, to the General Counsel and also granted the General Counsel the authority, with the Commission’s encouragement, to redelegate that litigation authority to the agency’s Regional Attorneys;

WHEREAS, in 2012, and again in 2016, as part of the EEOC’s Strategic Enforcement Plan, the Commission reaffirmed, with slight modifications, the 1995 delegation of litigation authority to the General Counsel (and through the General Counsel, to its Regional Attorneys);

WHEREAS, these previous delegations of its litigation authority to the General Counsel resulted in the Commission approving the commencement of or intervention in a small percentage of litigation; from fiscal year 2009 to fiscal year 2020, the Commission approved 157 of the 2,026 merits suits filed by the EEOC, less than eight percent of the total suits filed;

WHEREAS, in 2021, the Commission adopted a revised delegation of its litigation authority which partially returned to the Commission some previously-delegated authority, including the ability to review all litigation or intervention recommendations and the ability to require a vote on any litigation recommendation upon the request of a majority of the Commission;

WHEREAS, the Commission seeks to return to the Commission, except in limited circumstances, the authority Congress entrusted to it to commence or intervene in litigation, and to execute that authority in a more effective and efficient manner;

THEREFORE, BE IT RESOLVED that the Commission shall execute its authority to commence or intervene in litigation, as follows:

1. By majority vote, the Commission shall decide to commence or intervene in all litigation, except as set forth in paragraphs 5-7 below.
2. Upon receipt of a recommendation from the General Counsel to commence or intervene in litigation under this paragraph, the Commission will consider and vote upon the recommendation within 7 business days:
   1. Cases that the General Counsel reasonably expects will involve a major expenditure of agency resources, including staff time or expenses, or that are likely to require unusually extensive discovery or use of expert witnesses (including, but not limited to, all systemic cases, all pattern-or-practice cases, and all cases involving 15 or more aggrieved individuals);
   2. Cases involving or presenting issues on which the Commission has taken a position contrary to precedent in the Circuit in which the case will be filed; 
   3. Cases involving or presenting issues on which the General Counsel proposes to take a position contrary to precedent in the Circuit in which the case will be filed; or
   4. Cases that reasonably implicate areas of the law that are not settled or that are reasonably likely to generate public controversy.
3. Upon receipt of a recommendation from the General Counsel to commence or intervene in litigation that is not encompassed by paragraph 2, the Commission will consider and vote upon the recommendation for litigation within 5 business days.
4. Voting
   1. A Commissioner may vote on the proposed claims prior to the expiration of the review period; such a vote becomes final at the conclusion of the review period. Commissioners have the option to approve, disapprove, “agenda” the item, recuse, or abstain from the vote.  An “agenda” vote is a vote to request that the Chair place the item on the agenda for consideration at a future closed meeting of the Commission.  Once all participating Commissioners have voted, the Executive Secretary retains discretion to close the vote prior to the conclusion of the consideration and voting period. 
   2. The General Counsel may withdraw a recommendation to commence or intervene in litigation at any time prior to the expiration of the voting period, provided a majority of Commissioners have not cast a vote to disapprove. Nothing in here precludes the General Counsel from altering its litigation recommendation after one or more vote of disapproval based on a change in the law or learning new facts. The General Counsel also may withdraw the recommendation if there is a tie vote of all participating commissioners. 
   3. If a recommendation to commence or intervene in litigation is approved by the Commission, the General Counsel may proceed to conduct the litigation immediately.
   4. If a recommendation to commence or intervene in litigation is disapproved by the Commission, the relevant District Director must promptly issue notices of right to sue to all charging parties or aggrieved individuals.
5. Notwithstanding paragraphs 1-3, the Commission delegates to the General Counsel authority to:
   1. Commence the following types of litigation:
      1. Cases to enforce any record keeping and reporting requirements established and maintained by the Commission; or
      2. Cases to enforce any consent decree, settlement, or other resolution of litigation.
   2. In coordination with the EEOC’s Office of Field Programs, refer to the Department of Justice charges involving state or local government employers (public sector charges) that fail conciliation under Title VII, the Americans with Disabilities Act, the Pregnant Workers Fairness Act, or the Genetic Information Nondiscrimination Act.
6. Nothing in this delegation alters the authority of the General Counsel under 29 C.F.R. § 1601.16(d) (subpoena enforcement actions) or 29 C.F.R. § 1601.23(a) (preliminary injunctions and temporary restraining orders), and related statutory provisions.
7. In instances where the Commission lacks a quorum, the Commission delegates to the General Counsel authority to commence or intervene in litigation pursuant to paragraph 3 above. The General Counsel also may proceed under paragraphs 5-6 in instances where the Commission lacks a quorum.  Before proceeding in court under this paragraph, the General Counsel shall provide five business days’ notice to the commissioners.
8. Consistent with its confidentiality obligations under Title VII, especially where the Commission ultimately declines to proceed, the Commission will publish on its public website the final results of all votes of the full Commission regarding litigation matters encompassed by this resolution and, only in the event a matter is approved, a link to the relevant public document.
9. Time periods set forth in this resolution are computed by excluding the day of the event that commences the period, that is the day the General Counsel transmits a litigation recommendation to the Commission. All business days are counted; Saturdays, Sundays, legal holidays, or days where the federal government in Washington, DC area is closed, are not counted.  If the last day of a period is a legal holiday or a day the federal government is closed, the period ends on the next business day.
10. For purposes of this resolution and delegation, “General Counsel” means: (1) an individual appointed by the President with the advice and consent of the Senate pursuant to 42 U.S.C. § 2000e-4(b)(1); or (2) an individual performing the functions or duties of the vacant office under the provisions of the Federal Vacancies Reform Act.

Done this 22nd day of January 2026.

For the Commission,

Andrea R. Lucas

Chair