What to Expect From the EEOC Once a Quorum Is Restored

The U.S. Equal Employment Opportunity Commission has been at the center of the administration's push to root out diversity, equity and inclusion programs in the workplace since President Donald Trump took office.

The EEOC's efforts have been led by Andrea Lucas, who was appointed acting chair by Trump in January and was confirmed by the U.S. Senate in late July to serve a second term on the commission.

Despite its active role, the EEOC has operated in a very limited capacity since January, when Trump fired two Democratic commissioners, Jocelyn Samuels and Charlotte Burrows, leaving the commission with only two members — Lucas and Kalpana Kotagal, a Democrat — and thus without a quorum.

That is likely to change soon, however, as Brittany Panuccio, Trump's EEOC nominee, has been voted out of a key Senate committee and is expected to be confirmed soon by the full Senate.

With a quorum and a Republican majority, the EEOC will be positioned to rescind guidance from President Joe Biden's era, issue new rules, reset its enforcement priorities and authorize lawsuits that challenge the use of DEI programs that the administration views skeptically.

Employers should thus soon be prepared for a more assertive EEOC, especially as it intensifies its scrutiny of DEI programs.

The EEOC's Role in the Trump Administration's Targeting of DEI

When Trump took office, he immediately issued executive orders and directed federal agencies to pursue efforts to eliminate so-called illegal DEI programs in the federal government, among federal grantees and contractors, and in the private sector, among others.¹

The White House and various agencies quickly followed these executive orders with a litany of fact sheets, press releases, FAQs, formal and informal guidance, and technical assistance documents pressing the administration's position against DEI initiatives.

Other than the U.S. Department of Justice, no agency has been more central to, and vocal about, the Trump administration's scrutiny of DEI practices and programs than the EEOC. This is unsurprising.

Created by Title VII of the Civil Rights Act, the EEOC is the principal federal agency charged with enforcing antidiscrimination laws in the workplace, and Congress has granted it sweeping powers to investigate, litigate, collect data, and issue rules and guidance connected to its statutory mandate.

As stakeholders sought to understand the reach of the executive orders in the first weeks of the Trump administration, they confronted undefined terms, including "illegal DEI" or "unlawful DEI," that were mentioned throughout the orders but had no identified legal meaning.

The resulting confusion left many institutions uncertain about the legal risk associated with their own DEI programs and triggered lawsuits challenging these orders as vague.²

To fill that gap, the EEOC, partly with the DOJ, released joint technical assistance documents and FAQs in March to "help educate the public about how well-established civil rights rules apply to employment policies, programs, and practices — including those labeled or framed as 'DEI'."

While for the first time offering a working definition of which practices can constitute "illegal DEI," the EEOC guidelines also explained in very practical ways how workers who have experienced DEI-related discrimination in the workplace can file charges with the EEOC.

These technical assistance documents affirmed that the EEOC would apply heightened scrutiny to the programs and be a receptive forum for complainants challenging DEI initiatives at work.

Beyond these guidelines, the EEOC has advanced the administration's priorities by pursuing high-profile investigations targeting DEI programs, as well as resolving prominent matters related to antisemitism.

In an Aug. 1 press release, responding to criticism from former commissioners for the EEOC's unrelenting focus on DEI, Lucas touted the agency's "historic progress," including with DEI and addressing antisemitism in higher education.

How the Loss of a Quorum Affects the EEOC's Operations

The historic progress that Lucas has celebrated is striking, because it has occurred without a commission quorum.

After Trump removed Samuels and Burrows, there were widespread concerns from the public that the agency's operations would be stalled. To allay these fears, the EEOC responded on its website that it "remains open for business."

In practice, it maintained its day-to-day operations — processing, investigating, conciliating, and mediating new discrimination and commissioner charges; issuing any resulting right-to-sue letters; issuing subpoenas; filing modest cases; and litigating major cases that the commission had previously approved.

But without a quorum, the commission's authority has been severely constrained.

It cannot, for instance, bring, or intervene in, cases that allege systemic discrimination or a pattern or practice of discrimination, require substantial EEOC resources, seek to upend circuit precedent, stray into an unsettled area of law, or are likely to generate controversy. Nor can the commission file amicus briefs, take broad agency-wide positions, or issue or amend regulations, policies and guidance.

The EEOC's lack of a quorum has already given some litigants grounds to seek dismissal of EEOC-initiated lawsuits alleging systemic discrimination or a pattern or practice of discrimination, contending that the agency lacked authority to bring the lawsuit.³

If a quorum is not restored soon, other defendants may seek to challenge the EEOC's actions on the same theory.

What Employers Can Expect Once a Quorum Is Restored

The EEOC is the agency that all private employers look to in order to interpret the scope of federal antidiscrimination law. Lucas has already signaled that she is aligned with Trump and his priorities.

The confirmation of a new commissioner — and the restoration of a quorum — would promptly enable the EEOC to aggressively pursue the Trump administration's efforts to dismantle DEI programs.

With a quorum, the EEOC could authorize bold, far-reaching lawsuits to challenge the use of DEI in the workplace, where the facts and investigation so warrant, including pattern or practice litigation against employers with DEI programs that the EEOC deems to be discriminatory.

And while its public statements have likely already emboldened some private litigants and state attorneys general, with a quorum, the EEOC can file amicus curiae briefs, or even intervene, in litigation attacking DEI programs as incompatible with the administration's reading of federal antidiscrimination statutes.

In strategically deploying the weight of its institutional authority, the EEOC may be able to shape the law in a more meaningful way than it has to date.⁴

In addition, armed with full authority to issue or amend guidance, policy and regulations, the EEOC is likely to embrace positions in formal rulemaking that, to date, have been relegated to nonbinding and informal technical assistance documents and FAQs.

The EEOC could also shift its enforcement priorities by, for instance, prioritizing so-called reverse discrimination cases, shifting away from disparate impact cases and pivoting to intentional discrimination cases.

Besides anticipating the EEOC taking a more aggressive anti-DEI stance and applying heightened scrutiny to any practices, programs or initiatives that rely on distinctions based on race, sex or other protected characteristics, employers should also expect the EEOC to rescind all or parts of the regulations issued last year under the Pregnant Workers Fairness Act.

Lucas has been outspoken in her opposition to certain portions of the commission's final rule implementing the PWFA because she believes it broadens the scope of the statute in a manner that cannot be reconciled with the text.

Specifically, in an April 2024 statement, she objected to the extension of the rule's accommodation requirements to "reach virtually every condition, circumstance, or procedure that relates to any aspect of the female reproductive system."⁵

It is also likely that the EEOC's "Enforcement Guidance on Harassment in the Workplace," portions of which were declared unlawful in May by a Texas federal court, will also be substantially rescinded or revised, with a particular focus on removing protections for harassment based on gender identity.

Finally, it is likely that the EEOC will also focus on efforts to expand religious accommodations, consistent with the U.S. Supreme Court's 2023 decision in Groff v. DeJoy.

In that case, the Supreme Court clarified and modified Title VII's undue burden standard, holding that employers must reasonably accommodate employees whose sincerely held religious beliefs conflict with work requirements, unless doing so would create a burden that is substantial in the overall context of an employer's business.

Indeed, there have already been hints of this shift in recent decisions by the EEOC's Office of Federal Operations clarifying employees' religious rights in the workplace.⁶

Conclusion

The focus on DEI, especially by the EEOC, is going to continue unabated. Many companies have relaxed their monitoring of DEI developments because the pace of new executive orders seems to have slowed. That is a mistake.

Companies and organizations must continue to approach DEI as a key strategic issue demanding the full attention of leadership, to avoid significant legal, reputational and operational risks, as the Trump administration implements its anti-DEI policies through formal rulemaking, litigation and official actions.

This article was originally published in Law360.