An Administrative Power Grab at the EEOC

Although these agencies have different missions, they have one thing in common: the requirement of a majority vote. That should leave no room for political or bureaucratic influence. But those who are impatient to further their policies have developed workarounds. At the Federal Trade Commission, there is controversy over “zombie” or “ghost” votes, in which departing commissioners vote on matters not yet finalized when their term ends. At the Federal Deposit Insurance Corp., the chairman resigned after other members conducted a vote without her.

The agency where we serve as commissioners, the Equal Employment Opportunity Commission, administers federal civil-rights laws applicable in the workplace. Republican commissioners still hold a majority. According to agency rules, when the commission opines on a new policy, it must be approved through a majority vote of the commissioners.

Last year, in defiance of these rules, the Democratic chairman unilaterally issued a “technical assistance” document purporting merely to interpret and assist employers and employees in understanding their obligations and rights under the Supreme Court’s decision in Bostock v. Clayton County (2020), which expanded the definition of “sex discrimination” to include sexual orientation and gender identity.

Notwithstanding clear language in the Bostock decision reserving judgment on hot-topic issues such as dress codes, pronouns and bathroom access, the agency’s publication issued decrees on all those questions. All this without a vote of the commission. Several lawsuits were filed, and in July a federal judge in Tennessee enjoined enforcement of the “technical assistance” document in a case brought on behalf of 20 state attorneys general.

The EEOC’s voting procedures on litigation are similarly being undermined. When Congress created the commission in 1964, it declined to give it authority to sue; that power rested solely with the Justice Department. In 1972 Congress gave the EEOC power to file suit in some circumstances, but only on the initiative of the Senate-approved commissioners.

In 1995 the commissioners voted to delegate a substantial amount of the authority for commencing litigation to the general counsel, whose statutory role is limited to “conducting” it. The general counsel subsequently redelegated much of that power—which belongs to the commissioners as a matter of law—to subordinates. During the Trump administration, the commissioners, by a majority vote, revoked our predecessors’ 1995 delegation. In doing so, we restored the power, oversight and accountability Congress wrote into law.

But staffers at the EEOC seek to thwart the law. On numerous occasions, when a majority of the commissioners have voted down a proposed lawsuit, instead of formally closing the matter due to the majority’s formal decision, they apply EEOC voting procedures inconsistently to undermine the majority’s disapproval power. The result is that a proposed case is simply “withdrawn” administratively. The vote isn’t publicly reported—it’s as if it never happened. The statute doesn’t authorize or even envision such an administrative veto.

We have no doubt that those proposed lawsuits will reappear and quickly be approved for filing when the commission shifts to a Democratic majority with the appointment of a successor to Ms. Dhillon. We also expect the new majority to redelegate its statutory power to authorize litigation back to the administrative state.

This trickery violates the rule of law, circumvents congressional intent and harms the public. The administrative state is alive and well at commissions like ours. It’s an open question how best to rein in administrative employees who enjoy extensive legal protection from removal. The Supreme Court may eventually have to weigh in.

Ms. Dhillon and Mr. Sonderling are EEOC commissioners.