Biden-Era Workplace Bias Policies Under Threat With Trump DOJ

The incoming Trump Justice Department is poised to pull back from defending lawsuits over Equal Employment Opportunity Commission guidance that gave workers gender identity bias protections and other rules covering abortion-related accommodations.

The first Trump administration’s DOJ took opposing stances from the EEOC in several workplace discrimination cases before federal courts. The rift that formed between the agencies is poised to emerge again, creating potentially vexing civil rights law enforcement contradictions.

“The DOJ will make those decisions based on the parties involved, the challenge—but we know, given the previous Trump administration and the challenges that we’ve seen so far, that a Trump DOJ will most likely be hostile to these regulations,” said Gaylynn Burroughs, vice president for education and workplace justice at the National Women’s Law Center.

Trump’s second term will give a Republican commissioner the EEOC chair post, result in a Republican general counsel, and set the stage for a more conservative-leaning agency in the future after more than a year of a Democratic majority driving priorities.

But the EEOC’s ongoing litigation traditionally has not been changed much by a switch in leadership and the administration, said David Lopez, a Rutgers Law School professor and Obama-era commission general counsel.

The DOJ may be a different story. In 2017 the first Trump administration’s attorneys walked back the Obama Department of Labor’s overtime rule, declining to defend it in a federal appeals court.

DOJ and EEOC Rifts

Perhaps the DOJ’s most notable break with the EEOC came in 2019 when it filed a US Supreme Court brief opposing the commission’s stance that gender identity is covered under Title VII of the 1964 Civil Rights Act.

The EEOC didn’t sign the DOJ’s opposing brief, despite its urging. The case brought by the EEOC on behalf of a transgender worker was ultimately decided in the employee’s favor as part of the landmark Bostock v. Clayton County ruling.

In another clash with the commission, the first Trump administration’s DOJ filed a brief with the Supreme Court undercutting the EEOC’s position in a disability bias case over medical testing it brought on behalf of a railway worker.

There are areas where a Trump DOJ is likely to have different positions than Biden’s, but “whether they would take a step of not defending the case I think is a different story,” said Andrew Maunz, an attorney at Jackson Lewis and former Trump-era EEOC general counsel.

The DOJ may proceed on some cases by arguing on procedural grounds, Maunz said.

This allows the DOJ to oppose a federal court challenge to a previous administration’s agency rule, while still putting disagreement with the agency on the record.

In 2019, the Trump DOJ represented the EEOC in a case brought by Texas challenging the commission’s criminal background guidance issued during the Obama administration. The guidance said employers that rely on criminal convictions to disqualify applications could face discrimination allegations.

The DOJ agreed with the EEOC that Texas’s lawsuit shouldn’t be heard because the state didn’t have standing to sue, however the department wrote a brief underscoring their opposition to the guidance and said that it wouldn’t enforce it.

Pregnancy Bias Regulations

The EEOC is the subject of at least two lawsuits on its workplace harassment guidance and at least four on its PWFA rulemaking.

There have been conflicting rulings from lower courts on challenges to the PWFA rules. The first appellate decision could come from the Eighth Circuit, which heard oral arguments in September on a red state-led Administrative Procedure Act challenge.

The opposition to the pregnancy bias law is centered around the inclusion of abortion as a “related medical condition” in the rules but not explicitly in the statute, which passed Congress with broad bipartisan support. Republican EEOC Commissioner Andrea Lucas, likely to be named chair or acting chair under Trump, issued a statement along with her vote against the final rules that underscored her support aside from abortion’s inclusion.

“I would hope the DOJ, even if it stops defending the application of the rule to so-called elective abortions would continue to say the rest of the rule is properly enforceable,” said Deborah Widiss, a professor at Indiana University Maurer School of Law who focuses on employment law.

The litigation EEOC has brought under the PWFA so far hasn’t yet tackled abortion related accommodations.

But if private litigation is brought under the PWFA, especially if it deals with an abortion-related request, Trump’s DOJ may choose to file an amicus brief about how the law should be interpreted that conflicts with the EEOC’s rulemaking, said Marcia McCormick, a professor at Saint Louis University School of Law who specializes in labor and employment law.

Harassment Guidance

Similarily, DOJ could oppose part, but not all, of the EEOC’s workplace harassment guidance, based on opposition to the gender identity protections, Widiss said.

Harassment guidance challenges have centered on protections for workers against misgendering and coverage of their ability to use the bathrooms that align with their gender identity.

Since EEOC guidance lacks distinct enforcement mechanisms and operates more as a summary of the EEOC’s interpretation of law, injunctions on those cases may not interfere with the commission’s enforcement process as much, McCormick said.

Though pending litigation clashes appear to be on the horizon, the next Trump administration need not square off against the EEOC to influence standards for employers.

Day one control of the DOJ’s Office of Civil Rights and the Department of Labor’s Office of Federal Contract Compliance Programs will give the White House significant investigatory and litigation power.

“They can create a system in which employers, in order to play it safe because they might be governed by both the EEOC and OFCCP, might go with the most conservative or limited approach to their own HR practices,” McCormick said.