CHANGES AT THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

So far there have been few dull moments with the second Trump Administration. In particular, there have been significant changes at the Equal Employment Opportunity Commission (“EEOC” or “Commission”), which this article will address.

First, as is fairly common with a change of administration, President Trump appointed Commissioner Andrea Lucas (R) as Acting Chair and left one Democrat, Kalpana Kotagal, on the Commission. At press time, the five-member EEOC currently has only two members and accordingly lacks a quorum. Bye rule, this means that the EEOC cannot issue new regulations or guidance, nor withdraw or replace existing regulations or guidance. However, all enforcement activity may proceed, which includes investigating charges of discrimination or filing lawsuits on behalf of aggrieved individuals.

WITHDRAWAL OF TRANSGENDER LITIGATION

Earlier this year, the EEOC dismissed seven transgender/non-binary discrimination lawsuits that had been filed during the Biden Administration. The charging parties are left to retain private counsel if they choose to continue the litigation on their own. In one of the cases, the EEOC stated that the litigation “may be inconsistent with” positions taken by the Trump Administration.

Why? Look no further than President Trump’s Executive Order (“EO”) “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” and subsequent guidance document from the Office of Personnel Management instructing federal agencies about compliance with the EO.

Under the Biden Administration, the EEOC considered it discriminatory and harassing to deliberately referring to a transgender or nonbinary employee by birth name instead of their chosen name (i.e., “dead-naming”), or to deliberately fail to use the employee’s preferred pronouns. Then, the EEOC had a long-standing position that transgender employees must be allowed to use the restrooms for the gender with which they identify.

Now, the Trump Administration is going back to the use of binary “male” and “female” based on biological sex and has even banned the use by federal employees of preferred pronouns in their email signature blocks.

PREGNANCY ACCOMMODATION

Going forward, the EEOC may no longer enforce regulations issued under the Pregnant Workers Fairness Act (“PFWA”), which is currently being challenged by a number of states with Republican attorneys general. The basis of such lawsuits is their position that the PWFA regulations list elective abortions as “pregnancy-related conditions” entitled to accommodation – for which they found objectionable.

Last year, Commissioner Lucas publicly opposed the regulations based on her opinion that the definition of “pregnancy, childbirth, and related conditions” was overly broad and could include just about anything gynecological.

“ANTI-AMERICAN” DISCRIMINATION

Commissioner Lucas issued a press release confirming that the EEOC would pursue employers who discriminate against applicants and employees of American national origin. Lucas said:

“The EEOC is putting employers and other covered entities on notice: if you are part of the pipeline contributing to our immigration crisis or abusing our legal immigration system via illegal preferences against American workers, you must stop. The law applies to you, and you are not above the law. The EEOC is here to protect all workers from unlawful national origin discrimination, including American workers.”

The EEOC has said that this stance applies to staffing agencies, so logically it would also apply to PEOs.

EXECUTIVE ORDER 14168

“Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (i.e., EO 14168), reverses the EEOC’s April 2024 workplace harassment guidance (the “Guidance”). The January 20, 2025 Order seeks to end federal enforcement of sex-based laws based upon gender identity and tasks federal agencies to enforce sex-based antidiscrimination laws without regard to gender identity because gender identity “improperly transforms laws and policies designed to protect sex-based opportunities into laws and policies that undermine them.”

Note that the Guidance expanded Title VII’s protections for LGBTQ+ employees in response to the Supreme Court’s decision in Bostock v. Clayton Cnty., 590 U.S. 644 (2020), which held that Title VII’s protections include sexual orientation and gender identity. And, the Guidance mentions denying an employee access to a bathroom consistent with their gender identity as well as the repeated and intentional use of a pronoun inconsistent with an employee’s known, preferred pronouns as a form of sex discrimination.

DEI UNDER SIEGE

The EEOC came out with new guidance on “diversity, equity, and inclusion-related discrimination.” This guidance contains a new interpretation on DEI initiatives with respect to anti-discrimination protections.

The EEOC’s guidance tasks employers to reassess their DEI programs to ensure they are crafted in a manner consistent with longstanding protections. Highlights:

• Disparate Treatment and Unequal Access to Opportunities: The EEOC’s guidance places a new focus on excluding individuals from training, mentoring, fellowships, or interview slates based on protected characteristics.
• Segregation and Classification: The guidance warns against separating employees into separate groups for DEI-related activities on the basis of race, sex, or other protected characteristics.
• Harassment: The EEOC affirms that DEI training should not create a hostile work environment.
• Retaliation: Title VII’s anti-retaliation provisions may apply when an employee objects to DEI training based upon a good-faith, fact-specific belief that the training violates anti-discrimination laws.
• Employee Resource Groups (ERGs): The guidance also affirms that ERGs and affinity groups must be inclusive and open to all employees and should not limit access based on race, sex, or other protected traits which may raise concerns of exclusion or unlawful segregation.

Here’s the main takeaway: review policies and procedures and update them accordingly, but there may be more changes coming, so continue to monitor changes to EEOC policy.