Last week, as part of a major shake-up of the federal government’s enforcement agencies, President Trump made three major changes to the Equal Employment Opportunity Commission (EEOC), all of which will cause a major shift in the political leanings of the EEOC. One of those changes, the firing of EEOC General Counsel Karla Gilbride, was expected. The other changes, the firing of EEOC Commissioners Charlotte Burrows and Jocelyn Samuels, were unexpected and unprecedented.

President Trump’s firing of Gilbride will have the most immediate effect and has been established as within presidential authority. As a result, Gilbride is not expected to challenge her termination. Although her replacement has not yet been named, this action ends her authority over management and coordination of EEOC enforcement litigation, which had been aggressively pursuing various employers and implementing the Biden administration’s agenda nationwide. It is expected that Gilbride’s termination will dramatically alter the EEOC’s enforcement priorities, including which lawsuits are filed by the EEOC and what actions (or inactions) are taken in charge investigations.   

President Trump’s firing of Burrows and Samuels, two of the three remaining Democrat EEOC Commissioners, on the other hand, was largely unexpected. This action was unprecedented, and most likely will face court challenge(s). Both Commissioners have stated they are exploring legal options. For the time being, Burrows’ and Samuels’ removals leave the five-member board with only two members: Commissioner Andrea Lucas, who President Trump has designated as Acting Chair, and Commissioner Kalpana Kotagal, a President Biden appointee. Since the EEOC no longer has the requisite three-member quorum, the EEOC cannot decide cases. Thus, these terminations prevent the EEOC, which had a majority of three Democrat Commissioners to one Republican Commissioner before President Trump’s actions, from issuing any additional decisions or guidance that could be contrary to President Trump’s agenda. Until President Trump appoints, and the Senate confirms new EEOC Commissioners, the EEOC will remain unable to issue rulings or guidance, absent a successful court challenge that reinstates these Commissioners.

Importantly, upon her appointment as Acting Chair, Lucas issued the following statement:

“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.”

This statement provides employers with a taste of where the EEOC will focus its enforcement efforts once it has the requisite three-member quorum. Wise employers will remember, however, that many States have their own enforcement agencies, that enforce State anti-discrimination laws, and it is very possible that some (if not many) of those States will continue enforcement efforts similar to those of the Biden EEOC.

If you have any questions about how these changes to the EEOC’s composition and priorities may impact your business, please contact the authors.