The Equal Employment Opportunity Commission is the latest agency whose authority has been challenged as a result of last year's Supreme Court decision striking down the legislative veto.
The agency is planning a two-pronged attack to circumvent a recent decision by the 2nd U.S. Circuit Court of Appeals that prevents it from enforcing the Age Discrimination in Employment Act in the circuit -- New York, Connecticut and Vermont -- because related legislation contained a legislative veto clause. Such a clause enabled Congress to reject certain executive branch actions by a vote of one house or both, without having to pass legislation and submit it for the president's approval.
Next week, EEOC attorneys plan to petition the court to reconsider its August decision in an age discrimination case involving CBS. The court held that since the legislative veto clause in the Reorganization Act of 1977 is unconstitutional, the executive order that transferred enforcement of the age discrimination law from the Labor Department to the EEOC is also invalid.
By implication, the lawyers said, the commission also would be precluded from enforcing the Equal Pay Act (EPA) because its enforcement was also transferred to the EEOC at that time.
The Reorganization Act of 1977 gave the president limited authority to rearrange departments and agencies, subject to a veto by either house of Congress. Using that authority, President Jimmy Carter submitted a reorganization plan in 1978 that transferred responsibility for policing age discrimination and equal pay to the EEOC.
"By implication, whenever a circuit court makes a decision, that is only binding in that circuit," EEOC General Counsel Johnny J. Butler said. However, he said, other attorneys could cite the appellate court ruling as "persuasive authority" in arguing similar cases.
EEOC Chairman Clarence Thomas noted that the 2nd Circuit Court's conclusion was the opposite of that reached by judges in the 5th Circuit Court of Appeals in New Orleans. In an equal pay case, the New Orleans court "found that the legislative veto issue was severable from the enforcement" of the Equal Pay Act, and that the EEOC had the authority to proceed in a suit against Hernando Bank Inc.
In testimony before the House Education and Labor subcommittee on labor-management relations this week, Thomas said he would be willing to support legislation to correct the problem. He noted that the 2nd Circuit Court stayed its order until Dec. 31 to give Congress time to pass legislation that would restore the EEOC's enforcement authority over the age discrimination act.
Butler said that several congressional committees are considering introducing legislation to correct the problem. One suggestion is that Congress simply attach a bill number to Carter's reorganization plan, pass it and send it to President Reagan for his signature.