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What You Should Know About EEOC and Modified Delegation of Litigation Authority

The Commission has modified the delegation of litigation authority from the Commissioners to the General Counsel, effective March 10, 2020.

Background

Congress, in Title VII of the Civil Rights Act of 1964, gave the Commission authority to commence or intervene in litigation against private sector employers to enforce the nation's employment discrimination laws.  Congress gave the Commission's General Counsel the responsibility to conduct such litigation.  The Commission had previously delegated some of the authority to initiate litigation to its General Counsel, as follows:  

  • Beginning in 1995, as part of the EEOC's National Enforcement Plan, the Commission delegated its litigation authority, in certain cases, to the General Counsel.  
  • In 2012 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.
  • In 2016, the Commission again reaffirmed, with slight modifications, the delegation of litigation authority to the General Counsel in section IV of the Commission's Strategic Enforcement Plan (SEP) for Fiscal Years 2017 - 2021.

2020 Modification

The modified delegation is similar to the delegation that was approved by the Commission as part of the 2016 SEP, however, it includes several significant updates to promote the efficient and effective exercise of the Commission's litigation authority. The authority to commence and intervene in litigation is modified to require Commission approval for cases presenting issues where the Commission has taken a position contrary to precedent in the Circuit where the case will be filed, as well as cases where the General Counsel is proposing to take a position contrary to the precedent in the Circuit where the case will be filed.  As was the case previously, all cases requiring a major expenditure of resources require Commission approval, and, in addition, all cases alleging systemic or pattern or practice discrimination must receive Commission approval.  In addition, the requirement that each District Office submit a minimum of one case for Commissioner consideration each fiscal year has been reinstated.

The modified delegation retains delegation to the General Counsel for litigation that does not fit into the noted categories, however it establishes a process for consultation between the Chair and the General Counsel to determine if any other cases are appropriate for Commission approval.  The modified delegation revokes its prior ratification of the General Counsel's authority to redelegate to the Regional Attorneys the authority to commence litigation.

Please visit www.eeoc.gov/eeoc/plan/litigation_delegation.cfm for a complete copy of the modified delegation.