Change Is Stirring at the Equal Employment Opportunity Commission

Shortly after the inauguration, the U.S. Equal Employment Opportunity Commission (EEOC) announced that President Donald J. Trump had named Commissioner Andrea R. Lucas Acting Chair of the EEOC. Lucas has served as an EEOC Commissioner since 2020, after being nominated by President Trump during his first term.

During her tenure on the Commission, Lucas has written frequently about her views about challenging and emerging issues in employment and civil rights law, and to address what she believes are common misunderstandings about the law.

Not long after her appointment, President Trump issued an Executive Order (“EO”) entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” an EO that rescinded a long-standing EO that for almost 60 years required government agencies to include a provision in every government contract that a contractor agrees not to discriminate against and to take affirmative action to prevent discrimination against any employee or applicant because of certain protected characteristics. President Trump’s new EO orders the Office of Federal Contract Compliance Programs (OFCCP) to “immediately cease: (A) [p]romoting ‘diversity’; (B) [h]olding federal contractors and subcontractors responsible for taking ‘affirmative action’; and (C) [a]llowing or encouraging federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.”

While specific to federal contractors, the new EO also appears to be an attempt to discourage private employers from engaging in diversity, equity and inclusion (DEI) programs and practices, requiring the Attorney General and heads of federal agencies to submit individual reports with recommendations for enforcing civil rights laws and taking other appropriate measures to encourage the private sector to end DEI programming. The EO directs that the heads of federal agencies should include key concerns within each agency’s jurisdiction and identification of the “most egregious” DEI practitioners, as well as a plan or measures to deter DEI programming or principles.

President Trump also dismissed both the siting EEOC General Counsel (Karla Gilbride), as well sitting EEOC Commissioners Charlotte Burrows and Jocelyn Samuels. With only two Commissioners remaining, the EEOC is without a quorum to formally adjudicate matters (see Title VII, 42 U.S.C. § 2000e–4(c)) (noting that “three members . . . shall constitute a quorum”). In light of certain pre-emptive protectionary measures taken by the EEOC in December 2024 under the Biden administration, the EEOC voted to approve “a limited delegation of authority in the event of a loss of quorum,” which was intended to allow for “continued contracting approval, decisions on petitions to revoke or modify enforcement subpoenas, and ministerial changes to regulations compelled by statute” to be undertaken by other persons within the broader EEOC agency. Major interpretative and enforcement guidance from the EEOC will not be forthcoming until a quorum is re-established.

Removal of Commissioners Burrows and Samuels is likely to be challenged, setting up the Trump administration’s desire to overturn a 1935 U.S. Supreme Court ruling that protects members of independent government boards from being removed by the president at will and without a serious reason, such as malfeasance or neglect of duties. Humphrey's Executor v. United States, 295 U.S. 602 (1935).

The biography from acting Chair Lucas on the EEOC’s website provides a preview of likely EEOC enforcement and policy priorities, including “evenhanded enforcement of civil rights laws for all Americans,” by:

• “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;”
• “protecting workers from religious bias and harassment;” and
• “remedying other areas that have been historically under-enforced by the agency.”

Moreover, on March 19, 2025, the EEOC and the Department of Justice issued a joint warning against unlawful DEI-related discrimination and included guidance on “What To Do If You Experience Discrimination Related to DEI at Work,” effectively encouraging private sector employees to file Charges of Discrimination with the EEOC if they believe they have experienced DEI-related discrimination at work or “reverse discrimination.”

No matter what the outcome of the controversy surrounding President Trump’s removal of Commissioners Burrows and Samuels, these priorities are likely to be the mainstay of the EEOC’s future enforcement activities for the foreseeable future under the new administration. In light of this, employers should evaluate their tolerance for risk, and consider their current programs, policies and published materials.