President Biden nominated Kotagal in April 2022 to replace outgoing Republican Commissioner Janet Dillon, but the nomination was held up in a deadlocked Senate Health, Labor, Education and Pensions Committee. A new one-vote majority in the Senate in 2023 facilitated Kotagal’s confirmation by a narrow vote that was largely along partisan lines.
Then, on October 17, the Senate confirmed Karla Gilbride as General Counsel, with some bipartisan support, to fill the position that had been empty since early 2021. Gilbride, who also clerked at the Ninth Circuit for Judge Ronald Gould, had held a variety of employee rights and public interest positions, most notably as Co-Director of the Access to Justice Project at the nonprofit organization Public Justice.
In 2022, she argued before the U.S. Supreme Court in Morgan v Sundance Inc., in which the Court unanimously held that an employer had waived its rights under a pre-employment arbitration agreement by waiting until eight months into a litigation before asserting them.
Gilbride, who has been blind since birth, is thought to be the first blind attorney to argue before the U.S. Supreme Court.
The EEOC General Counsel position had been vacant since President Biden terminated President Trump’s appointee in March 2021. From then until Gilbride’s confirmation, longtime EEOC attorney Gwendolyn Young Reams had served as Acting General Counsel.
Among the political disputes between the Trump and Biden administrations were actions taken by the Republican-controlled Commission during the Trump administration to limit the General Counsel’s autonomous authority with respect to selection of cases for the EEOC’s litigation docket.
As of press time Gilbride had not made any public statements about her plans for her role or her litigation priorities, the best guide to the Commission’s priorities is its new Strategic Enforcement Plan. The Commission periodically adopts a multi-year plan to set forth its enforcement priorities.
After reviewing the submitted public comments on a draft plan that was published in the Federal Register in 2022, the Commission issued its new plan this fall for fiscal years 2024–2028 on September 21. The plan, which had been made available in draft form for public comment in late 2022, is intended to set forth Commission wide enforcement priorities and the means by which it will pursue them.
The plan announces a series of substantive priorities. One area of focus will be recruitment and hiring practices, including those that use technology such as artificial intelligence and machine learning, where such systems might adversely impact statutorily protected groups. The plan also expressed particular concern about policies and practices that limit access to on-the-job training, apprenticeship programs and internships that might be based on protected characteristics. The Commission noted that the ongoing underrepresentation of women and minorities in industries including “STEM, high tech and finance” is a particular concern.
The plan expresses special concern for “vulnerable workers and persons from underserved communities,” including immigrant and migrant workers, workers with developmental or mental health disabilities, individuals with arrest or conviction records, LGBTQI+ individuals, survivors of gender-based violence, Native Americans, and persons with limited literacy or English proficiency. The Commission believes that workers in these groups are often unaware of their legal rights or reluctant to exercise them.
In a discussion about new and emerging issues, the plan mentions “discrimination associated with the long term effects of the COVID-19 pandemic, including long COVID.”
The plan gives a prominent place to pay discrimination “in all its forms,” including pay practices related to race, national origin, disability and age, as well as discrimination “at the intersection of protected bases.” The Commission notes that workers often do not know how their pay compares to that of their coworkers, and the Commission must therefore be proactive to facilitate enforcement. The Commission expressed concern about employer practices that might contribute to pay disparities such as pay secrecy policies, reliance on salary history in establishing pay, and discouraging or prohibiting workers from sharing wage information with coworkers.
The plan states that the EEOC will focus on policies and practices that inhibit individuals from exercising their statutory rights, like overly broad waivers, nondisclosure and nondisparagement agreements, unlawful or unenforceable mandatory arbitration provisions, and various retaliatory practices.
Finally, the plan notes that about one third of all new charges filed with the EEOC over a four-year period included some allegation of harassment. The Commission will continue to focus on “combating systemic harassment in all forms and on all bases,” including charges alleging harassment based on “a combination or intersection” of multiple protected categories.
In addition to the Strategic Enforcement Plan, the EEOC posted in August draft regulations under the new Pregnant Workers Fairness Act for public comment. Passed by Congress and signed into law by President Biden in 2022, the PWFA requires employers to provide reasonable accommodations to an employee’s known limitations related to pregnancy, childbirth or related medical conditions, absent undue hardship, building upon the protections and methods developed under the Americans With Disabilities Act.
