Employment & Labor Insider

Tons of stuff has been going on. Read all about it!

"No way!" "Yes, way!"

The new EEOC

On Tuesday, the U.S. Senate confirmed President Trump’s appointment of Republican Brittany Panuccio to the U.S. Equal Employment Opportunity Commission. The five-member EEOC has been without a quorum since January, when the President fired Democratic Commissioners Charlotte Burrows and Jocelyn Samuels.

With the appointment of Ms. Panuccio, the EEOC has a quorum again and a 2-1 Republican majority. (The other EEOC commissioners are Chair Andrea Lucas (R) and Commissioner Kalpana Kotagal (D).)

Ms. Panuccio, who was an Assistant U.S. Attorney for the Department of Justice in Florida, is taking the EEOC seat that was held by Republican Keith Sonderling. Mr. Sonderling was an EEOC Commissioner until July 2024, when his term expired. He is now Deputy Secretary of Labor.

Ms. Panucci's term on the EEOC will expire July 1, 2029.

     New priorities

Although the EEOC has not had a quorum until now, Chair Lucas has made clear the direction that the agency will take. We expect these to be the priorities:

• Religious rights (non-discrimination and reasonable accommodation), including the rights of Christian and Jewish employees.
• Accommodations for pregnancy and related conditions (including lactation).
• A hard line against "reverse” discrimination against members of "majority" groups, including white, male, and heterosexual individuals; and against overly aggressive Diversity, Equity, and Inclusion initiatives.

We expect the following to be lower priorities than before:

• LGBTQ rights. The EEOC can’t ignore the U.S. Supreme Court decision in Bostock v. Clayton County (in which the Court held that discrimination based on sexual orientation or gender identity is a form of “sex” discrimination prohibited by Title VII), but the agency is expected to be less aggressive in pursuing those claims.
• Disparate impact. The EEOC is expected to continue following an Executive Order issued by President Trump in April, directing that the government stop pursuing claims for “disparate impact” discrimination. (“Disparate impact” claims arise when an employer has a neutral policy that has a disproportionate negative effect on members of certain races or other protected groups.)

In both instances, private plaintiffs can continue to pursue these claims.

With other EEO claims (race discrimination, male-female sex discrimination, age discrimination, and disability discrimination/failure to accommodate, or harassment or retaliation based on any of these categories), we do not anticipate significant changes. However, the EEOC might be more receptive to the employer’s point of view than it was during the Biden Administration.

     Regulatory action

We also expect the EEOC to revise or replace regulations and guidance issued during the Biden Administration, including the regulations on the Pregnant Workers Fairness Act (which required employers to make reasonable accommodations for elective abortions and had very burdensome procedures for employers to follow) and the Enforcement Guidance on workplace harassment, which had significant emphasis on sexual orientation and gender identity. Portions of the Enforcement Guidance were struck down in May by a federal judge in Texas, but the EEOC may do a complete do-over now that it can.

Assuming the federal government ever reopens.

"Whoo else got confirmed?"

Other key confirmations

In other confirmations, the EEOC’s Acting General Counsel, Andrew Rogers, is now head of the Wage and Hour Division of the U.S. Department of Labor. Jonathan Berry is Solicitor of Labor. Mr. Berry was a managing partner in a conservative law firm. David Keeling is head of the Occupational Safety and Health Administration. Mr. Keeling held safety-related roles with Amazon and United Parcel Service.

Christian teacher to get trial

Finally, the U.S. Court of Appeals for the Seventh Circuit decided this week not to grant a rehearing in the case of a Christian teacher who was fired after he refused to use his students’ preferred names and pronouns. The majority of a three-judge panel of the court had decided in August that the teacher was entitled to a jury trial on his claim of religious discrimination. With this week’s decision, the teacher will get his trial, assuming the parties don’t settle.

"Goodness gracious! I was absolutely certain that the court was going to grant that motion for rehearing en banc."

And that's all the news that's fit to print. Have a great weekend!