Seyfarth Synopsis: EEOC Commissioner Keith Sonderling, a Republican who first joined the EEOC in 2020, has announced his departure from the Commission in August 2024. Sonderling's tenure was marked by his significant contributions to discussions on artificial intelligence in employment, establishing him as a leading authority on the subject. His departure leaves the EEOC with a 3-1 Democratic majority, and so it does not alter the Commission's current political balance.
EEOC Commissioner Keith Sonderling has announced publicly that he will be departing the EEOC in August and rejoining the private sector. Sonderling's departure will leave the EEOC with a 3-1 Democratic majority, with Commissioner Andrea Lucas being the lone Republican on the Commission.
While Sonderling's term on the Commission expired on July 1, Title VII allows him to remain on the Commission for an additional 60 days and also allows a commissioner to hold over for even longer periods if the President nominates a replacement. However, given the current dynamics in Washington, DC, we are unlikely to see any nominations to the EEOC, let alone fast confirmation action by the Senate, for the remainder of the year.
During his tenure as an EEOC Commissioner, Sonderling became one of the leading voices regarding the use of artificial intelligence in employment. His early efforts in this area, in 2021, marked the first time an EEOC Commissioner engaged in-depth regarding issues relating to the use of AI in the workforce, and since then Sonderling has been a prominent and authoritative voice discussing both the potential benefits of AI, its potential risks, and the applicability of existing laws to the use of AI. Sonderling's frequent engagement with global regulators has furthermore cemented him as a leading authority on these issues, and he has continued to travel around the world, lending his perspective as a US policymaker and speaking about both the benefits and potential harms associated with the use of AI in the workplace.
Sonderling's departure from the EEOC does not signal a shift in the current political balance of power at the EEOC, since the EEOC has had a 3-2 Democratic majority since the confirmation of Commissioner Kalpana Kotagal in the summer of 2023. The Democratic majority has not been shy about exercising its prerogatives, and EEOC Chair Charlotte Burrows has moved through multiple initiatives via 3-2 votes over the Republican Commissioners' objectives. Notable recent EEOC actions approved over Republican objections include the approval of the long-pending Enforcement Guidance on Harassment in the Workplace, the EEOC's regulations relating to the Pregnant Workers' Fairness Act (PWFA), the EEOC's Strategic Plan and Strategic Enforcement Plan, the EEOC's proposed regulatory agenda, and proposed inter-agency agreements with the Department of Labor and the National Labor Relations Board. On the AI front, both Sonderling and Lucas voted to disapprove the EEOC's amicus brief in the Mobley v Workday class action, in which the EEOC voiced its support for novel theories of direct liability for AI vendors facing claims under the laws the EEOC enforces.
Sonderling's departure leaves Commissioner Andrea Lucas the sole dissenting Republican vote on the EEOC. However, throughout her term on the EEOC, Commissioner Lucas has crossed the political aisle multiple times, voting with the Democratic majority to approve Commission actions over the objection of her Republican colleagues. In contrast, Commissioner Sonderling has never voted with the recent Democratic majority to approve a Commission action over Commissioner Lucas' dissent.
Upon joining the Commission in 2020, Sonderling served as the EEOC's Vice Chair, a position he held through January 2021. Before joining the EEOC, he served as the Acting and Deputy Administrator of the Wage and Hour Division at the U.S. Department of Labor. Before entering federal service in 2017, Sonderling was a management-side labor and employment lawyer in Florida.
Implications for Employers
Private-sector employers should remember that the majority of the EEOC's litigation activity is approved on a bipartisan basis, or without formal votes by the Commission. And while Commissioner Sonderling's departure from the EEOC means that one of the EEOC's most prominent voices on AI and technology issues is leaving, the EEOC's enforcement priorities and other activities in this space will continue.
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