Employment & Labor Insider

Jocelyn Samuels was initially appointed to be a Commissioner on the U.S. Equal Employment Opportunity Commission by President Trump, and then she was reappointed by President Biden. Not long after President Trump took office the second time, he fired Ms. Samuels, as well as the former Chair of the EEOC, Charlotte Burrows. Ms. Samuels and Ms. Burrows are both Democrats.

The firings have deprived the five-member EEOC of a quorum and of much of its power to act. The only commissioners left are Chair Andrea Lucas (R) and Kalpana Kotagal (D).

This week, Ms. Samuels filed suit against the Trump Administration, contending that Title VII did not give the President authority to terminate her before the end of her term. Her lawsuit, filed in federal court in the District of Columbia, alleges that President Trump has

undermined the EEOC’s historic independence and interfered with its statutorily mandated duties to protect workers from discrimination, at a time when workers around the country are particularly vulnerable to discrimination. Defendant Trump’s efforts to hamstring the EEOC are consistent with and further his Administration’s efforts to turn back the clock on decades of established precedent protecting workers and job applicants from discrimination, but they are contrary to law."

If you've been following David Phippen's outstanding bulletins (here and here), you know that the terminations by the Trump Administration of Member Gwynne Wilcox (D) of the National Labor Relations Board and Cathy Harris (D) of the Merit Systems Protection Board are also being challenged in court. (Ms. Wilcox and Ms. Harris filed suit separately, but their cases have now been consolidated.)

With minor differences, the National Labor Relations Act and the statute governing the MSPB say that members can be terminated before the expiration of their terms for negligence or malfeasance in office. In the NLRA, it is not directly stated but arguably implied that those are the only valid reasons for termination before the expiration of the term. The MSPB statute outright says that members can be terminated before the end of their terms "only for inefficiency, neglect of duty, or malfeasance in office." (Emphasis added.)

There has been no allegation that either Ms. Wilcox or Ms. Harris has engaged in negligence or malfeasance (or, in the case of Ms. Harris, inefficiency), so the issue in their cases is essentially whether Congress has the power to restrict the President's authority to terminate at will quasi-judicial executive agency employees. (I am oversimplifying, but I won't subject you to Humphrey's Executor again. That decision and its significance are discussed in both of the bulletins and the blog post linked above.)  

The EEOC is in a similar, but not identical, situation.

Section 2000e-4 of Title VII pertains to the EEOC. The five members are appointed by the President to five-year terms, and no more than three commissioners can be from the same political party. (That's why President Trump appointed a Democrat during his first term.)

The President gets to designate one Commissioner as “Chairman,” and President Trump did this in January when he named Andrea Lucas, the only Republican Commissioner, as Chair. Unlike the NLRA and the MSPB statute, Title VII does not directly address whether, or under what circumstances, the President has the authority to terminate a Commissioner before the expiration of her term.

As with Ms. Wilcox and Ms. Harris, there were no indications of negligence or malfeasance in office by either Ms. Samuels or Ms. Burrows, and both were terminated well before their terms would have expired. Ms. Samuels' term was scheduled to expire in 2026, and Ms. Burrows’ term was not scheduled to expire until 2028.

We'll keep you posted about the Samuels lawsuit as well as the Wilcox/Harris lawsuit. Ms. Samuels is represented by the Democracy Forward Foundation, Katz Banks Kumin LLP, and Justice Legal Strategies PLLC.

And I saved the most BOMBSHELL, STUNNING, AMAZING NEWS THAT YOU LITERALLY WON'T BELIEVE for last:

Ms. Burrows has not sued the Administration over her termination!!!!!!! (At least, not yet.)

On a much more pleasant topic:

A happy Passover to all of our Jewish readers!