Top EEOC Lawyer Nomination Signals Aggressive Litigation Focus

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Karla Gilbride, chosen by President Joe Biden to be the EEOC’s top lawyer, is expected to spearhead an aggressive litigation program that would help cement the administration’s progressive agenda.

The lead attorney for the nonprofit advocacy group Public Justice would likely join a newly formed Democratic majority on the US Equal Employment Opportunity Commission. If confirmed, Gilbride would be the last piece needed for the workplace discrimination agency to execute the progressive policy measures that have been under consideration for more than a year.

“The most tangible ways employers become involved with the EEOC is when the EEOC files a complaint,” said Andrew Maunz, who previously served as legal counsel for the EEOC during the Trump administration. “It’s not happening as much as other years, but I think the general counsel will definitely play a role in that.”

The EEOC’s General Counsel is responsible for overseeing the agency’s 15 regional attorneys, each of whom is a career public servant with specialized knowledge of their respective districts. The Advocate General has the ability to stop or continue litigation initiated by regional prosecutors and present certain cases to the commission for a vote.

Gilbride, who has worked in public justice for seven years, has a record of suing major corporations for alleged employment violations ranging from arbitration rights, Covid-19 safety protocols, wage and hour disputes and discrimination in employment. Her career even led her to become a potential choice for a nomination to the United States Court of Appeals for the District of Columbia Circuit.

Less than a month before the White House announced Biden’s intention to nominate Gilbride for the EEOC, the civil rights lawyer won a U.S. Supreme Court victory for a worker in a dispute over whether a Taco Bell franchise could force arbitration of the worker’s overtime claims.

Stephanie K. Glaberson, a professor at Georgetown University Law Center and Gilbride’s former colleague at Public Justice, said she was a “brilliant attorney and advocate.”

“Karla – it’s no secret given her background – has always been a champion for workers and consumers,” Glaberson said. “Her work has really been about using the law to empower those who have less in society, so I expect her to continue to do so.”

long vacation

Gilbride reportedly fills a vacant position since Biden fired the agency’s Trump-appointed general counsel, Sharon Gustafson, in March 2021. Career officials have overseen the office in the interim.

But recent changes have made it less clear what power Gilbride would have if the Senate confirmed her as general counsel.

The EEOC’s Republican majority in January 2021 voted to change how it allows litigation, allowing commissioners to decide whether to vote to approve or reject each proposed legal action. The EEOC’s General Counsel and field office attorneys were previously authorized to make independent decisions in routine workplace discrimination disputes, while more sensitive or resource-intensive cases were presented to the commission.

It’s unclear whether the EEOC will reverse that decision if it wins a Democratic majority this year with the nomination of Kalpana Kotagal to the commission, according to Maunz.

Biden nominated Kotagal in April to replace Republican Commissioner Janet Dhillon, whose term expires in July. Kotagal’s nomination was relatively quick, but last month the Senate Health, Education, Labor and Pensions Committee deadlocked over his nomination, forcing an additional procedural step before a full review by the Senate.

“I think the litigation delegation is the biggest, very tangible piece that I think people will see a big difference in” if it’s reversed, said Maunz, now a partner at Jackson Lewis PC.

There’s also the question of how long it would take for Gilbride to get up to speed with his new role.

“The challenge is how do you lead this group of disparate, experienced people and make them work toward your goal,” said Stuart Ishimaru, a former Democratic EEOC commissioner who is now a consultant at LMI. “It’s a management challenge that most general counsel take time to get used to.”

Chai Feldblum, another former Democratic EEOC commissioner who taught Gilbride at Georgetown Law, said she was confident the civil rights lawyer would be able to strike that balance.

This ability to listen “is a critical attribute for success because she has to work alongside regional lawyers who have worked for the agency for years, have strong personalities and do their jobs very well,” said Feldblum, who is now Vice Chairman of the US AbilityOne Commission.

Strategic Implementation Plan

Gilbride’s litigation history would likely be a boon to a more aggressive EEOC program.

In addition to his Supreme Court victory in the Taco Bell arbitration case, in 2019, Gilbride convinced a federal judge in California to rule in favor of a Mexican farm worker on a temporary visa who sought to avoid arbitrating his wage and hour claims because he had signed the arbitration agreement under duress.

Gilbride has also represented workers at Amazon.com Inc., Tyson Foods Inc. and Smithfield Foods Inc. in cases alleging a failure to protect them from Covid-19.

The appointment comes as the EEOC plans to vote this fall on a new strategic enforcement plan, which outlines the agency’s litigation priorities and other goals.

Democratic commissioners typically prioritize handling large, systemic cases over individual cases when allocating limited resources, Ishimaru said. “It looks like she’ll take a broad and cautious view of how best to use resources and choose targets,” he said of Gilbride.

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