What You Should Know About the Commission’s Authority to Commence or Intervene in Litigation

On Jan. 21, 2026, the Commission voted 2-1 to approve a resolution to modify the delegation of litigation authority from the Commissioners to the General Counsel.

Background

Congress, in Title VII of the Civil Rights Act of 1964, expressly gave the Commission authority to commence or intervene in various forms of employment-related litigation. Congress also made the EEOC General Counsel responsible for the conduct of such litigation.

The Commission previously delegated some of the authority to initiate litigation to its General Counsel, as follows:

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.

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).

Delegation of its litigation authority to the General Counsel resulted in the Commission approving 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, or less than 8% of the total suits filed.

2026 Resolution

This 2026 resolution returns 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.

Except for limited circumstances, such as loss of quorum, the Commission will vote on recommendations submitted by the General Counsel including for the following:

• 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);
• 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;
• 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
• Cases that reasonably implicate areas of the law that are not settled or that are reasonably likely to generate public controversy
• All other cases, except for cases to enforce any recordkeeping and reporting requirements established and maintained by the Commission; or cases to enforce any consent decree, settlement, or other resolution of litigation.

The General Counsel retains authority under 29 C.F.R. § 1601.16(d) (subpoena enforcement actions) and 29 C.F.R. § 1601.23(a) (preliminary injunctions and temporary restraining orders), and related statutory provisions.

The General Counsel also retains delegated authority (in coordination with the EEOC’s Office of Field Programs), to 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.

Full text of the resolution is here: https://www.eeoc.gov/resolution-concerning-commissions-authority-commence-or-intervene-litigation.