What’s New at the EEOC and What It Means for You

The Equal Employment Opportunity Commission (EEOC) is the federal agency that investigates violations of and enforces laws prohibiting employment discrimination at the federal level. As a department within the executive branch, the EEOC’s activities typically reflect the policy priorities of the presidential administration at the time, and that is holding true now. The EEOC’s policies and enforcement actions will have significant effects for employers and employees alike, which is why it is essential for both to stay up to date on the current state of affairs at the Commission, and our Richmond employment lawyers can help.

Personnel Shakeups

The EEOC has five presidentially appointed members — a chair, a vice chair, and three commissioners. The chair, the vice chair, and one of the commissioners are from the majority party, while the two other commissioners are from the minority party. Shortly after taking office in January, President Trump removed two of the three Democratic commissioners on the EEOC, as well as its general counsel. The two removed commissioners, Jocelyn Samuels and Charlotte Burrows, were serving terms scheduled to end in 2026 and 2028, respectively. President Trump also elevated Commissioner Andrea Lucas, a Republican, to Acting Chair. Lucas was confirmed to the Commission by President Trump in 2020 during his first term. Removal of EEOC commissioners without cause is a break from tradition and is likely to face legal challenges. The removals open the door for President Trump to appoint additional Republican commissioners.

No Commissioner Quorum

As of the date of this writing, there are only two seats filled on the Commission — Acting Chair Lucas and Commissioner Kalpana Kotagal, a Democrat, leaving a vacancy of three seats. The EEOC needs a quorum (i.e., three commissioners) to engage in certain activities, including official rulemaking, issuing or rescinding guidance, and prosecuting lawsuits alleging broad-based, systemic discrimination. The Commission can, however, continue to engage in its day-to-day business of processing, investigating, and seeking resolution of charges of unlawful discrimination. It can also prosecute lawsuits in small and individual cases. For employers, this generally means that you should not expect any official rulemaking or major systemic lawsuits anytime soon. For employees, it means not much will change, as the EEOC’s authority to investigate and respond to claims of employment discrimination is unaffected. Of course, for more detailed information about how the EEOC’s policies will affect you, you should consider speaking to a Richmond employment lawyer.

Technical Guidance on DEI-Related Discrimination

In March, the EEOC issued two technical guidance documents, “What You Should Know About DEI-Related Discrimination at Work” and “What to Do if You Experience Discrimination Related to DEI at Work.” The former generally outlines the Trump EEOC’s policy stance on diversity, equity, and inclusion (DEI) initiatives in the workplace, while the latter is geared toward helping employees identify what it asserts is unlawful DEI-related discrimination. A few major takeaways from the policy document are outlined below.

Employees are not required to belong to “minority groups” to experience race discrimination or sex discrimination.
The EEOC does not require a higher burden of proof for showing “reverse discrimination.”
The prohibition on disparate treatment applies to access to training, mentorship, sponsorship, and networking programs; internships, fellowships, and summer associate programs; and selection or exclusion for candidate slates or interview pools.
A business interest in diversity is not a sufficient ground to allow identity-motivated employment actions.
DEI training programs can form the basis of hostile work environment claims.
Voicing opposition to DEI policies or practices may constitute a protected activity for retaliation claims.

For employers, the technical guidance establishes that they should review their employment policies and procedures for provisions that could expose them to enforcement risks. For employees, the guidance provides additional avenues for pursuing employment discrimination claims. Both should speak to a Richmond employment lawyer for more information about their specific situations.

Focus on Combatting Alleged Anti-American Bias

In February, the Commission announced that it was cracking down on employers who it considered to display a preference for illegal aliens, migrant workers, and visa holders over American citizens. The Commission characterizes those preferences as a form of unlawful discrimination based on national origin under Title VII of the Civil Rights Act. Employers may not use the following justifications to prioritize non-American workers:

They provide lower-cost labor
They are perceived as more easily exploitable
Customers or clients prefer them
They are perceived as more productive or better workers than American workers

For employers, the announcement indicates that they can expect more rigorous scrutiny of the legal status of their workers, while for employees, it means that they might experience greater headwinds in finding or holding a job if they are not American citizens.

Rolling Back Gender Identity-Related Policies

In January, the Commission announced that it was “removing gender ideology and restoring the EEOC’s role of protecting women in the workplace.” This was in response to President Trump’s Executive Order 14168, which directed federal agencies to enforce laws governing sex-based rights, protections, and accommodations. Pursuant to that order, the EEOC took the following actions:

Announced a policy preference for the biological and binary reality of sex in EEOC compliance, investigations, and litigation
Ended the use of “X” as a gender marker during the intake process for discrimination charges
Removed “Mx.” from the list of prefix options on forms for charges of discrimination
Removed pronouns from EEOC employees’ email signatures
Removed materials related to gender identity from the Commission’s internal and external websites and documents

The announcement clarifies, however, that without a quorum, the Commission cannot modify or revoke existing guidance that addresses gender identity, including the Commission’s guidance on sexual harassment.

Learn More About How These Policy Shifts Will Affect You From a Richmond Employment Lawyer

While the underlying laws prohibiting discrimination remain the same, the EEOC’s interpretation of them has taken a dramatic shift. To find out what that might mean for your business or career, please contact a Richmond employment lawyer at Pierce / Jewett by calling 804-502-2320 or using our online contact form.