New Pact to Trigger Inter-Department Consultation

The Equal Employment Opportunity Commission (EEOC), Department of Justice (DOJ) and Department of Labor (DOL) signed an important new Memorandum of Understanding (MOU).

It requires, among other things, that the EEOC “consult” with the DOJ and DOL before it gets involved in enforcement that involves novel or significant legal theories. 

Recall that, in June, the U.S. Supreme Court sided with the EEOC in Bostock v Clayton County finding that Title VII protects against discrimination based on gender identity and sexual orientation. The DOJ took the opposite position. On key issues such as this, the EEOC will need to consult with the DOJ before engaging in litigation.

Critics say it’s a way of granting the DOJ, which the White House immediately influences by its appointment of the Attorney General, control over the EEOC, which has autonomy from the White House due to the appointment of  commissioners with staggered terms.

Yep, you guessed it. The five EEOC Commissioners voted along party lines.. It may be interesting to see how the MOU plays out in the future. 

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