The U.S. Equal Employment Opportunity Commission (EEOC) was created by Congress with the enactment of Title VII of the Civil Rights Act of 1964. It is the agency tasked with enforcing federal job discrimination and harassment laws that prohibit discrimination in employment based on race, color, religion, sex, national origin, age, disability, pregnancy, and genetic information. It has never been a favorite of the current occupant of the Oval Office.

Thus, it did not come as much of a surprise that in the first week after taking office, Donald Trump named Andrea Lucas, whom Trump had first nominated as an EEOC Commissioner back in 2020, to be Acting Chair of the EEOC. Contemporaneously with Lucas’ promotion, Trump summarily terminated Charlotte Burrows and Jocelyn Samuels, two of the three remaining EEOC Commissioners, both Democratic appointees, before the ends of their five-year terms. Trump’s actions leave the agency without a quorum.

What can the EEOC do with only two Commissioners?

With Trump’s terminations of Burrows and Samuels, the EEOC has only two Commissioners, Lucas and Kalpana Kotagal, leaving it one Commissioner short of the required quorum. Can the EEOC still function without a quorum? In some ways, the EEOC can carry on day-to-day operations. In other ways, it is stymied without a quorum.

For example, even in the absence of a quorum, Lucas noted that the EEOC still is able to:

• Continue to enforce federal antidiscrimination laws, including Title VII
• Accept, process, investigate, or resolve charges of discrimination
• Issue notices of right to sue those who have filed charges of discrimination
• Issue informal enforcement guidance for the laws it administers
• Continue to file some lawsuits and pursue pending litigation

The lack of a quorum, hinders the EEOC significantly in other ways

However, the EEOC does not have the authority, without a quorum, to:

• Initiate notice-and-comment rulemaking under the Administrative Procedure Act
• Issue, modify, or revoke formal enforcement guidance previously issued by the EEOC
• Commence litigation[1] involving:
  • Claims of systematic or widespread discrimination
  • Issues that will involve significant expenditure of EEOC funds and resources
  • Claims on which the EEOC has previously maintained a position contrary to Circuit Court precedent, or for which the EEOC’s General Counsel proposes to take a position contrary to Circuit Court precedent
  • Other cases the EEOC General Counsel reasonably believes should be approved by the Commission, often because they implicate areas of law that are unsettled or prone to public controversy

What will the EEOC’s priorities be under Acting Chair Lucas?

To address some of the concerns created by Trump’s abrupt termination of two of the three sitting EEOC Commissioners, the agency hastily issued a “State of the EEOC” FAQs. The agency sought to reassure the public that it “remains open for business,” adding that Acting Chair Lucas is “committed to ensuring equal justice under the law and to focusing on equal opportunity, merit, and colorblind equality.”

What does that mean? On the day Trump announced her as new Acting Chair, Lucas made it clear that her 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
• Remedying other areas of recent under-enforcement

What changes has Acting Chair Lucas made so far?

Clearly, much of Lucas’ attention will be focused on getting rid of all federal laws and regulations “promoting gender ideology.”  In part, she intends to do this by prioritizing enforcement of Trump’s agenda, in particular Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truty to the Federal Government.”  To Lucas this means “enforc[ing] laws governing sex-based rights, protections, opportunities and accommodations to protect men and women as biologically distinct sexes and to remove all statements, policies, regulations, forms, communications, or other internal and external messages promoting gender ideology.” 

Lucas wasted no time, announcing a week after being appointed that she had already:

• Removed the EEOC’s “pronoun app,” which allowed an employee to identify pronouns, which then appeared alongside the employee’s display name across all Microsoft 365 platforms, both internally to the agency and externally
• Ended the use of the “X” gender marker during the EEOC’s intake process for filing a charge of discrimination
• Directed the modification of the EEOC’s charge of discrimination and related forms to remove “Mx.” from the list of prefix options
• Commenced a review of the content of EEOC’s “Know Your Rights” poster, which 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, while it is “under review” by the agency (without a quorum, Lucas cannot immediately remove or revise such content)

The takeaway for employers

With the EEOC “open for business” under the new management of Acting Chair Lucas but still without a quorum, employers should not expect to see the EEOC announce any notice-and-comment rulemaking or publish any new formal enforcement guidance in the near future. What employers can expect to see is the EEOC prioritizing its resource expenditures and enforcement efforts on eliminating what she and the current administration see as misplaced laws and regulations promoting “gender ideology,” stepped up enforcement against DEI-motivated race and sex discrimination, and more aggressive efforts to protect workers from antisemitism and other forms of religious bias and harassment.

Bean, Kinney & Korman’s employment law practice group works proactively with employers of all sizes, in Virginia, Maryland, and the District of Columbia, to craft a full range of employment policies and documents to meet the compliance challenges of all federal, state, and local anti-discrimination laws. If you have questions about your business’s policies or practices, the EEOC’s new enforcement emphases, or need assistance with your company’s employee policies or forms, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com, or your current Bean, Kinney & Korman attorney.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.

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[1] This is no small line item; the EEOC litigates extensively. In fiscal year 2024, for example, the EEOC won nearly $700 million on behalf of victims of employment discrimination and retaliation.