In the first days of his presidency, President Donald J. Trump made significant changes to the makeup and priorities of the Equal Employment Opportunity Commission (EEOC).
On the second day of his administration, President Trump de-designated a Democratic appointee as Chair of the EEOC and appointed Andrea R. Lucas, the sole Republican Commissioner, as Acting Chair of the EEOC. This is a common occurrence when there is an incoming administration with a new president from a different political party.
On the seventh day of his administration, President Trump fired Karla Gilbride, the EEOC’s General Counsel, who was confirmed for a four-year term in 2023. This action was expected.
On the seventh day of his administration, in an unprecedented move, President Trump also fired two commissioners – Charlotte Burrows and Jocelyn Samuels. Both commissioners are reportedly exploring whether to challenge their removal since this is the first time in 60 years that a commissioner has been removed prior to the end of their term.
With one vacancy and only two remaining commissioners on the five-member body — Lucas and Kolpana Kotagal — the EEOC does not have a quorum and is unable to act on policy matters until at least one new commissioner is nominated by the president and confirmed by the Senate.
However, litigation still can be initiated based upon a resolution adopted by the EEOC in 2021 which provides that the general counsel has the authority to file cases in instances where the EEOC does not have a quorum, provided that notice is provided to the remaining commissioners. It is unlikely, however, for any acting general counsel to exercise this authority unless the case involves the new administration’s enforcement priorities.
Lucas has served as an EEOC commissioner since 2020, having been nominated by President Trump during his first term. For insight into the forthcoming changes in the EEOC’s focus, Lucas issued a statement on January 21:
“I look forward to restoring evenhanded enforcement of employment civil rights laws for all Americans. In recent years, this agency has remained silent in the face of multiple forms of widespread, overt discrimination. Consistent with the President’s Executive Orders and priorities, my priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single‑sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.”
On the eighth day of the Trump administration, Lucas expanded on one of these priorities for compliance, investigations, and litigation as “Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace.” This was described as “defend[ing] the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.” To this end, on January 28, Lucas announced a series of actions pursuant to Executive Order 14166, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”:
- Removing the agency’s “pronoun app,” a feature in employees’ Microsoft 365 profiles, which allowed an employee to opt to identify pronouns, content which then appeared alongside the employee’s display name across all Microsoft 365 platforms, including Outlook and Teams. This content was displayed both to internal and external parties with whom EEOC employees communicated.
- Ending the use of the “X” gender marker during the intake process for filing a charge of discrimination.
- Directing the modification of the charge of discrimination and related forms to remove “Mx.” from the list of prefix options.
- Commencing a review of the content of EEOC’s “Know Your Rights” poster, which all covered employers are required by law to post in their workplaces.
- Removed materials “promoting gender ideology” on the Commission’s internal and external websites and documents, including webpages, statements, social media platforms, forms, trainings, and others.
If these events are any indication of things to come, employers should prepare for a rapid transformation of the EEOC’s enforcement priorities. Employers should pay particular attention to policies around diversity, equity and inclusion and affirmative action, in light of the administration’s unambiguous hostility against such measures and increasing litigation in this area.
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