United States: Senate Confirms New EEOC General Counsel As New Case Filings Climb

Seyfarth Synopsis: The Senate has confirmed Karla Gilbride as the EEOC's General Counsel, following an almost two and a half year vacancy. As GC, Gilbride is poised to make her mark on the EEOC's litigation program by directing and advocating for EEOC's litigators, both internally and externally. An accomplished disability-rights litigator, Gilbride could potentially further emphasize the EEOC's upward trend in filing litigation involving disability rights and accommodations.

On October 17, 2023, in a 50-46 largely¹ party-line vote, the Senate confirmed Karla Gilbride as General Counsel of the EEOC. The position has been vacant since March 2021, when President Biden fired Sharon Gustafson, the EEOC General Counsel nominated by President Trump.

Gilbride's confirmation is important for employers paying attention to the EEOC's litigation program. EEOC career staff in Washington, DC manage the litigation program in the absence of a Senate-confirmed GC, and career staff oversaw the spike in merits cases filed by the EEOC in FY2023, which we wrote about here. However, a Senate-confirmed appointee like Gilbride can introduce new priorities and direction based on her unique perspectives and political authority. With Gilbride's Senate confirmation, the EEOC's litigation program will soon have a leader looking to make her mark on the program's operations, bringing her own perspectives regarding litigation priorities and strategy, and advocating for additional resources for EEOC's litigators.

As General Counsel of the EEOC, Gilbride will have statutory responsibility for "conducting" litigation brought by the Commission, and as she gets up to speed she will soon start working with the EEOC's Regional Attorneys and trial attorneys, potentially asserting influence over the "conduct" of their cases. EEOC's Office of General Counsel can also be thought of as akin to a nationwide law firm with over 200 trial attorneys developing and bringing employment discrimination lawsuits. So, in addition to her statutory responsibility, Gilbride will also be responsible for managing the EEOC's litigators, addressing high-level personnel issues and advocating for resources, and setting their priorities.

While the Commission itself sets forth the Agency's priorities through documents like its Strategic Plan and Strategic Enforcement Plan (see our previous coverage here and here), past EEOC General Counsels have sought to emphasize their own litigation priorities. For example, during her tenure as EEOC GC in the Trump Administration, Sharon Gustafson spoke frequently on issues relating to religious freedom, and keen EEOC observers can draw easy connections between Gustafson's stated priorities and religious freedom lawsuits developed and brought during her tenure. Likewise, David Lopez, the EEOC GC nominated twice by President Barack Obama, frequently emphasized his priority of how the EEOC should function as one "national law enforcement agency," and under his tenure the EEOC's litigators were encouraged to operate with more collaboration and coordination across the various District Offices.

A natural area for Gilbride to focus on may be disability rights, accessibility, and reasonable accommodations. Gilbride is an accomplished litigator and trailblazer. In 2022, Gilbride was the first blind attorney to argue a case before the U.S. Supreme Court (obtaining a unanimous decision in favor of her client), and she has spoken about how, for her, technology "has been an absolute game-changer in terms of being able to access information." With her unique experience, Gilbride can be expected to bring a perspective that could further emphasize the importance of disability discrimination and accommodation issues in the workplace.

All of this comes against the backdrop of increased EEOC focus on litigating ADA claims. The EEOC filed 48 disability-related lawsuits in FY2023, nearly doubling the 27 ADA cases it had filed the here prior. (Read more about that here.) Gilbride will be the EEOC's first blind General Counsel, and having a Senate-confirmed appointee in this very public role will unquestionably further elevate disability discrimination and accommodation issues, both internally within the Commission, in the Commission's outreach efforts, and potentially also in its litigation efforts.

Implications for Employers

With her confirmation by the Senate, Kara Gilbride is poised to shape the EEOC's litigation program as its new General Counsel, bringing her own perspectives regarding litigation priorities and strategy, and advocating for additional resources for EEOC's litigators. We will watch closely to see if, under her leadership, EEOC's litigators will bring increased focus to disability discrimination and accommodation issues.

Stay tuned to the Workplace Class Action Blog for more EEOC analysis, as the Seyfarth team continues to analyze all EEOC activity and prepares to publish its annual EEOC-Initiated Litigation Report.

Footnote

1 Senator Susan Collins of Maine was the lone Republican voting in favor of Gilbride's confirmation.

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