By Will Kessler
Daily Caller News Foundation
The Equal Employment Opportunity Commission (EEOC) will soon have the opportunity to institute its left-wing agenda following the confirmation of a new Biden-appointed commissioner, according to multiple reports.
The confirmation of left-wing lawyer Kalpana Kotagal to the EEOC, a year after she was originally nominated, gives Democrats a 3-2 advantage on the commission once she assumes office, breaking the stalemate that has generated partisan deadlock for the past year. The EEOC will soon be in a race to entrench a number of left-wing policies, such as guidance on artificial intelligence bias, LGBT bathroom rules and diversity, equity and inclusion (DEI) policies, before the term of Democratic Chair Charlotte Burrows ends later this year, according to Bloomberg Law.
“The EEOC has a tremendous amount of power to investigate, mediate, negotiate settlements, and allow litigation,” Lori Roman, Chairman of the American Constitutional Rights Union, said to the Daily Caller News Foundation. “And they have a great deal of latitude in interpreting the federal laws they enforce. So, one can imagine that Democrat control of the Commission will bring a zealous interpretation of discrimination against employees based on sexual orientation, especially since they deal with the very subjective matter of ‘harassment.'”
The EEOC is a federal agency in charge of enforcing laws against job discrimination and harassment, investigating complaints of workplace discrimination based on “race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (40 or older), or genetic information”, according to the EEOC website. The commission sues those who violate discrimination laws when the employer does not comply.
The commission is expected to push actions on LGBT bathroom policies in the workplace that were previously shot down by a federal judge due to its lack of full commission approval, according to Politico. In 2020, the Supreme Court ruled in Bostock v. Clayton County that federal anti-bias laws prohibit job discrimination on the basis of sexual orientation and gender identity.
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The EEOC improperly interpreted the ruling by implementing rules without commission approval, enabling LGBT people to use whichever bathrooms, dressing rooms and locker rooms they choose, which was then struck down by the judge. With the new majority on the commission, the EEOC could move to implement workplace policies involving bathrooms, dress codes, and locker rooms, according to Bloomberg Law.
I’m incredibly concerned about Kalpana Kotagal’s record of support for radical transgender ideology.
The Equal Employment Opportunity Commission was created to combat racism and sexism in the workplace, but the woke Left is trying to use the EEOC to push its agenda on… https://t.co/8kDqhK1EW4
— Senator Ted Cruz (@SenTedCruz) July 12, 2023
Dan Morenoff, executive director of The American Civil Rights Project, believes that the EEOC has greater independent policymaking authority than other agencies due to its unique position to give guidance. Employers must follow the guidance or they could face the burden of legal action.
“Effectively, the EEOC wields enormous substantive power to determine the content of American employment law, subject to fewer checks than are agencies that Congress actually sought to grant policymaking authority,” Morenoff told the DCNF.
The commission released non-legally binding guidance in May 2023, expressing concern and giving resources for employers to understand if they are discriminating with their use of artificial intelligence or automated systems in selecting applicants for job positions, according to an EEOC press release.
“As employers increasingly turn to AI and other automated systems, they must ensure that the use of these technologies aligns with the civil rights laws and our national values of fairness, justice and equality,” Burrows said in the press release. “This new technical assistance document will aid employers and tech developers as they design and adopt new technologies.”
Burrows released a statement following the Supreme Court’s June decision to strike down race-based admissions, expressing the commission’s support for DEI policies in the workplace, indicating that greater protections for DEI policies could be pushed with the new majority.
The EEOC referred the DCNF to the 2024 EEOC Congressional Budget Justification for what Burrows’ priorities are following the confirmation of Kotagal, noting that they “have not changed.”
“With the President’s mark, the EEOC will focus, in particular, on six areas – advancing racial justice and combating systemic discrimination on all protected bases; protecting pay equity; supporting diversity, equity, inclusion, and accessibility (DEIA); addressing the use of artificial intelligence in employment decisions and preventing unlawful retaliation,” the budget justification outlines under its priorities.
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