EEOC Exclusive: Discussing the Commission’s Priorities With Quorum Restored

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Adam Dougherty: Welcome to EEOC Exclusive, a recurring podcast regarding insider insights into the EEOC, how it works, how to respond, what certain types of communications from it likely mean, what drives the commission, and importantly, this happened, what do we do next? My name is Adam Dougherty, and I’m a board-certified labor and employment law attorney and partner here at Ogletree. I’m here with my co-hosts and EEOC insiders, D’Ontae Sylvertooth, and Sean Oliveira. Gentlemen, can you let the folks who are listening know just a bit about yourselves?

D’Ontae Sylvertooth: Sure. Thanks, Adam. My name is D’Ontae Sylvertooth. I’ve been practicing law since about 2011. Prior to becoming a lawyer, I worked as an EEOC investigator for some years, and then once I became a lawyer, I became a trial attorney for the EEOC, and went to the Navy, litigated on behalf of the Navy. And private practice, litigating on behalf of employers and been there since. So, about 14, 15 years of experience overall.

Adam Dougherty: Awesome. How about you, Sean?

Sean Oliveira: Hi, everybody. Thanks, Adam. I started out investigator with the EEOC. I did that for 15 years, first in the New York City office, and then in the St. Louis district office. Became a lawyer after going to night school in 2019 and joined Ogletree and been doing law ever since.

Adam Dougherty: So, fellas, Brittany Panuccio was just confirmed by the Senate to become a Commissioner on the EEOC. Can you tell our listeners why that is important?

D’Ontae Sylvertooth: Thanks, Adam, for the question. So, for those who don’t know, the commission is made up of five commissioners and one of the commissioners are typically considered a chair. Normally, it’s the process of only three commissioners can be the same party; two have to be from the other party. And currently, there were two chairs, the acting chair, Andrea Lucas, and then commissioner, I can’t pronounce the last name, but I’m going to say Kotagal, were the only two commissioners, which means that the EEOC didn’t have quorum. And the reason that that’s important is that the quorum is how commissioners decide on decision-making for the agency, deciding on guidance, particularly in regards to the interpretation of new laws and interpretations of executive orders and things of that nature. So, why it’s important is that before the EEOC was kind of stagnant with respect to the things that it could decide from a commission standpoint, even though typical day-to-day operations and folks who normally deal with EEOC would not have noticed a difference. But for folks who are concerned about the policy decisions, that’s where the commissioners are most powerful. And so, this third individual who is now confirmed gives the EEOC the authority to have quorum and thus have the ability to vote on guidance, vote on rescinding guidance, and things of that nature. And so, we expect that that will be coming shortly once this new commissioner starts her work. So, yeah.

Adam Dougherty: Excellent. Thanks for that summary. So, Sean, we’ve seen a lack of quorum in the past with agencies. Why has this mattered, in particular, with respect to the EEOC?

Sean Oliveira: Well, it’s sort of an interesting thing. The EEOC, since January 20th, has really radically transformed in the last eight or nine months. Projects and goals and initiatives and things have been somewhat divorced from politics. But Acting Chair Lucas, you see when she started, she immediately announced her goals in all sorts of things, radical transformations for the agency. As employers will know for the last few years, there hasn’t been a lot of review of DEI programs from the EEOC or the pursuit of litigation with regard to that. The commission really handled a lot of COVID-19 religious accommodation basis leading to a lot of dismissals and that kind of thing. Well, when the new acting chair started, she announced that there’s going to be increased scrutiny of DEI programs, a curtailment of transgender rights type cases, a major extension of religious rights, particularly Christian religious rights in workplace. And she wanted it to end litigation with regard to underwrites. The administration put out an executive order to end disparate impact cases. And since Chair Lucas has always been—she was against the harassment guidance that the EEOC issued, I think it was last year, and she was against the abortion portions of the regulations for the Pregnancy Workers Fairness Act. While the commission has done a lot in the last eight or nine months, there are things that they do, as D’Ontae pointed out, such as rescinding a portion of harassment guidance, they won’t rescind amending, the regulations they put out to PWSBA, and pursuing the types of litigations that they want to pursue, particularly the DEI that you’re talking about a lot.

Adam Dougherty: Excellent. So D’Ontae, did you have any other thoughts to add to what Ms. Lucas has maybe been able to accomplish even without a quorum?

D’Ontae Sylvertooth: Yeah, I mean, so I think from my perspective, I think that Acting Chair Lucas has implemented things with respect to the executive orders that required a vote from the commissioners that required the commission to be able to discuss those things thoroughly so that they could have a forceful discussion to decide how guidance should be either rescinded or new guidance should be added. But I think that she kind of just took it and ran with it. And no one is the wiser in the sense of challenging with respect to some of the things that she has been requesting, some of the letters that she has been sending out. In my view, I just don’t think that she has the authority to do so because she did not have the necessary quorum, and the commission had not properly voted on it. So that’s my perspective, but it is what it is. And I suspect, as Sean indicated with the quorum now, that a lot of the guidance will be either issued and or rescinded in short fashion. So yeah.

Adam Dougherty: So, Sean, final thoughts. What do you expect to see happen, say in the next month or two now that there will be a quorum and that’s, I guess, assuming that the government is up and running during that time?

Sean Oliveira: Yeah, that is assuming it’s up and running, and we’ll have to do an episode on that as well. Honestly, in the next month or two, I think particularly we’ll see the guidance or the harassment guidance either updated or rescinded. She takes issue with the portions of that guidance that say that if you deadname somebody who is transgender or if you’re using intentionally misgendering them and personally using the wrong pronouns, that constitute a hostile work environment. Her particular view on that, and again, I’m going from press release, this is what she has said, her particular view against that is that sort of goes against the rights of the individual religious rights might object to that.
I think we could probably expect to see that is gone in the next month or two as they’re open. That’s probably all we can expect in the next month or two. I mean, they would have to have cases already in waiting for them to be able to vote on litigating those cases. And there’s not a lot of that, but we could see that. I think those are probably the two biggest things that you might see in the next month or two.

Adam Dougherty: Well, that wraps up this episode of EEOC Exclusive. We thank you for tuning in and be on the lookout for our next one.

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