The ultimate result is apt to elucidate the limits of agency rule-making authority and testthe impact of the U.S. Supreme Court’s recent ruling in West Virginia v. EnvironmentalProtection Agency, 142 S.Ct. 2587 (2022). In that case, the Supreme Court consideredthe validity of the Environmental Protection Agency’s new Affordable Clean Energy(ACE) Rule that was promulgated under Clean Air Act (CAA). It held that, under themajor questions doctrine, the agency must point to “clear congressional authorization”for the authority it claims. The government failed to offer such authorization, insteadpointing to a “vague statutory grant” that the Supreme Court found “not close to the sortof clear authorization required by our precedents.” Id. at 2614.The changing tide of the Biden Administration’s policies has been slow to impact otherareas. Whereas the DOL acted swiftly to reverse course on many fronts, over most ofthe past year, the EEOC continued to operate with a Trump-appointed majority ofcommissioners.Although President Biden quickly named two Democrats for the five-memberCommission, Charlotte E. Burrows and Jocelyn Samuels, as Chair and Vice Chair,respectively, the commission retained a Republican-appointed majority until formerchair Janet Dhillon’s term expired in July 2022. Although such expiration opened thedoor to a Democratic-appointed majority, the Senate has not yet confirmed areplacement.As the DOL continued efforts to work an about-face on the rule-making front, theEEOC’s year-over-year activity remained fairly steady. During fiscal year 2022, theEEOC filed 94 lawsuits.This number marked a mild decrease from the filings during fiscal year 2021, when theEEOC filed 114 lawsuits, but it exceeded the number filed in fiscal year 2020 when theCOVID-19 pandemic pushed case filings down to just 33. Notably, the EEOC’sCalifornia district offices in San Francisco and Los Angeles combined for only 4 filingsthis past year, below the combined 13 cases they filed in fiscal year 2021.According to the EEOC, it filed 13 systemic lawsuits this past year, the same number itfiled during fiscal year 2021.24© Duane Morris LLP 2023Duane Morris Class Action Review – 2023
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