Sen. Lamar Alexander (R-TN), the current Ranking Member and soon to be Chairman of the Senate Health, Education, Labor & Pensions Committee, today issued a report entitled EEOC: An Agency on the Wrong Track? Litigation Failures, Misfocused Priorities, and Lack of Transparency Raise Concerns About Important Anti-Discrimination Agency, which can be found here. On the heels of a grueling confirmation hearing for EEOC General Counsel David Lopez, Sen. Alexander’s report highlights the concerns raised by employers during the past several years, including the shortcomings of the EEOC’s litigation program and lack of transparency. For example, the report discusses a significant decrease in the number of cases submitted to the Commissioners for approval prior to filing and the courts sanctioning the EEOC to pay attorneys’ fees ten times since 2011 in cases that were deemed frivolous or mismanaged by the EEOC’s attorneys. In addition, the report notes that the EEOC’s litigation recoveries have decreased to a 16-year low.
Despite the increase in sanctions and the decrease in verdicts and settlements, Mr. Lopez still stands to be confirmed to another four-year term at the EEOC, along with a five-year term for nominee Ms. Charlotte Burrow as Commissioner. On November 19, 2014, the Senate HELP Committee approved Ms. Burrows’ nomination by voice vote and Mr. Lopez’s renomination on a 12-10 party line vote. On November 20, 2014, Senate Majority Leader Harry Reid (D-NV) filed cloture on their nominations, among others. One can anticipate the Senate to hold a cloture vote shortly after the Thanksgiving recess. If 51 senators vote for cloture, the nominations will head to the floor for a confirmation vote.
These appointments would likely face stiff opposition come January. The coming months will be critical in determining how a Republican Congress and Democratic Administration will approach these questions and other important labor and employment issues for the next two years. Regardless, there will be plenty of activity from agencies trying to adopt new policy positions in the final two years of the Administration. If the tenor of this report and the previous hearings are any indication, the Senate HELP Committee may also consider increased oversight over the EEOC’s activities in the coming months and years.