Employment & Labor Insider

I reported a few weeks ago that President Trump fired two Democratic Commissioners of the Equal Employment Opportunity Commission (former Chair Charlotte Burrows and Jocelyn Samuels). He appointed Commissioner Andrea Lucas (R) as Acting Chair and left one Democrat, Kalpana Kotagal, on the Commission. One additional seat was already vacant, and as far as I can tell, no one has been nominated to fill that seat, or the seats vacated by Ms. Burrows and Ms. Samuels.

The firings plus the vacancy mean that the five-member EEOC currently has only two members and therefore lacks a quorum. That means they can’t issue regulations or guidance, or withdraw or replace regulations or guidance issued during the Biden (or any other) Administration. However, enforcement activity can continue.

Or stop, as the case may be.

Without question, the EEOC is backing down in certain areas. After an article in Bloomberg Law yesterday criticized what was going on, Andrea Lucas was a total honey badger:

Transgender litigation

According to Law360, this week the EEOC dismissed seven transgender/non-binary discrimination lawsuits that it had filed against employers during the Biden Administration. The charging parties will still be able to hire private attorneys and pursue the litigation on their own, but the EEOC is bowing out. According to a dismissal filed in one of the cases, continued pursuit of the case by the EEOC “may be inconsistent with” positions taken by the Trump Administration.

The documents cited were President Trump’s Executive Order “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” and a guidance document subsequently issued by the Office of Personnel Management instructing federal agencies about compliance with that EO.

During the Biden Administration, the EEOC took the position that it was discriminatory and harassing to deliberately “dead-name” a transgender or nonbinary employee, or to deliberately fail to use the employee’s preferred pronouns. And ever since the Obama Administration, the EEOC has taken the position that transgender employees must be allowed to use the restrooms for the gender with which they identify.

The second Trump Administration is returning 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

In addition, the EEOC has hinted that it may no longer enforce regulations issued under the Pregnant Workers Fairness Act, which have been challenged in a number of states.* The lawsuits, for the most part, take issue with the fact that the regulations included elective abortions as “pregnancy-related conditions” entitled to accommodation.

*Yesterday a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit ruled that the plaintiffs in Tennessee v. EEOC had standing to challenge the regulations, reversing an earlier decision from a federal judge in Arkansas that had resulted in dismissal of the lawsuit. It will be interesting to see how the EEOC proceeds, given its disapproval of the regulations but its lack of a quorum, which prevents it from withdrawing the regulations or issuing new ones. It can't simply drop the lawsuit because it's the defendant, not the plaintiff.

Then-Commissioner Lucas formally opposed the regulations when they were issued in 2024. Although her opposition did not mention abortion (at least, I didn't see it in there), she did contend that the definition of “pregnancy, childbirth, and related conditions” was overbroad and could arguably include just about anything gynecological, including menstrual periods, weight gain after the birth of a child, and menopause.

In my opinion, the PWFA regulations are indeed overbroad and burdensome, and could be a compliance nightmare for many employers. Once the EEOC gets a quorum, let’s hope for a new set of regulations that is simpler and more consistent with the statute.

(NOTE TO READERS: I wholeheartedly favor accommodating pregnancy and related conditions -- I just think the regs go beyond what they should have.)

Crackdown on “anti-American” discrimination

Although the EEOC is backing off in certain areas, it is taking an aggressive stance in at least one other.

Acting Chair Lucas issued a press release this week saying that the EEOC would go after businesses who discriminate against applicants and employees of American national origin. According to her statement,

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 "anti-American bias" crackdown applies to staffing agencies as well as employers.

Ms. Lucas referenced prior cases in which the EEOC recovered “multi-million dollar monetary awards” for employees who were Black, Asian, and white. “The common, but often unspoken, characteristic that tied these victims together? All were American workers.”

Off topic (but it does have to do with the Trump Administration) . . .

If you missed it yesterday, please do check out David Phippen’s latest on what’s going on at the National Labor Relations Board. Last week, the Acting General Counsel rescinded a slew of General Counsel memoranda that were issued during the Biden Administration. David provides the scoop in his inimitable way.