II 

118TH CONGRESS 

1ST SESSION S. 402 

To amend title VII of the Civil Rights Act of 1964 to require the Equal 

Employment Opportunity Commission to approve commencing, intervening in, or participating in certain litigation, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 14, 2023 

Mr. BRAUN introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend title VII of the Civil Rights Act of 1964 to 

require the Equal Employment Opportunity Commission 

to approve commencing, intervening in, or participating 

in certain litigation, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘EEOC Transparency 

5 and Accountability Act’’. 


kjohnson on DSK79L0C42PROD with BILLS
2 

•S 402 IS

1 SEC. 2. APPROVAL OF EEOC LITIGATION COMMENCEMENT, 

2 INTERVENTION, OR PARTICIPATION. 

3 Section 705 of the Civil Rights Act of 1964 (42 

4 U.S.C. 2000e–4) is amended by adding at the end the fol5 lowing: 

6 ‘‘(l)(1) The Commission shall decide by majority 

7 vote— 

8 ‘‘(A) whether the Commission will commence or 

9 intervene in litigation, for— 

10 ‘‘(i) each case involving an allegation of 

11 systemic discrimination or a pattern or practice 

12 of discrimination; 

13 ‘‘(ii) each case for which the litigation is 

14 expected to involve a major expenditure of 

15 agency resources, including staffing and staff 

16 time, or expenses associated with extensive dis17 covery or expert witnesses; 

18 ‘‘(iii) each case presenting an issue on 

19 which the Commission has taken a position con20 trary to precedent in the Judicial Circuit of the 

21 United States in which the case will be or has 

22 been filed; 

23 ‘‘(iv) each case presenting an issue on 

24 which the General Counsel proposes to take a 

25 position contrary to precedent in the Circuit in 

26 which the case will be or has been filed; and 


kjohnson on DSK79L0C42PROD with BILLS
3 

•S 402 IS

1 ‘‘(v) each case that the General Counsel 

2 reasonably believes to be appropriate for a 

3 Commission decision on such commencement or 

4 intervention, including— 

5 ‘‘(I) cases that implicate areas of the 

6 law that are not settled; and 

7 ‘‘(II) cases that are likely to generate 

8 public controversy; 

9 ‘‘(B) for each recommendation regarding 

10 whether the Commission will participate as amicus 

11 curiae in a case, whether the Commission will so 

12 participate; and 

13 ‘‘(C) in considering at least 1 litigation rec14 ommendation from each district office of the Com15 mission each fiscal year, including litigation rec16 ommendations for cases described in subparagraph 

17 (A), whether the Commission will commence or in18 tervene in the litigation for each case. 

19 ‘‘(2) A member of the Commission shall have the 

20 power to require the Commission to decide by majority 

21 vote whether the Commission shall commence, intervene 

22 in, or participate in any litigation as described in para23 graph (1). 


kjohnson on DSK79L0C42PROD with BILLS
4 

•S 402 IS

1 ‘‘(3) Neither the Commission nor a member of the 

2 Commission may delegate the authority provided under 

3 paragraph (1) or (2) to any other person. 

4 ‘‘(4) Not later than 30 days after the Commission 

5 commences, intervenes in, or participates in litigation pur6 suant to approval under this subsection, the Commission 

7 shall post and maintain the following information on its 

8 public website with respect to the litigation: 

9 ‘‘(A) The court in which the case was brought. 

10 ‘‘(B) The name and case number of the case. 

11 ‘‘(C) The nature of the allegation. 

12 ‘‘(D) The causes of action for the case brought. 

13 ‘‘(E) Each Commissioner’s vote on com14 mencing, intervening in, or participating in the liti15 gation. 

16 ‘‘(5) The Commission shall issue, in a manner con17 sistent with section 713, procedural regulations to carry 

18 out this subsection.’’. 

Æ 


kjohnson on DSK79L0C42PROD with BILLS