Trump’s Return Upends EEOC’s Enforcement Agenda at Record Speed

The EEOC is abandoning litigation and guidance on LGBTQ+ protections and other areas that were enforcement priorities just weeks ago.

The Equal Employment Opportunity Commission in recent days filed motions to dismiss at least six transgender discrimination cases, citing President Donald Trump’s executive order recognizing only “two sexes.”

The agency also signaled it may not defend its own rules under the Pregnant Workers Fairness Act , and pulled documents outlining AI anti-bias enforcement from its website.

Republican Acting Chair Andrea Lucas’s moves are undoing years of agency work before the EEOC even has a quorum to votes on major actions.

“We’re seeing an unprecedented shift through all means necessary and all forums available to effectuate a different agenda of the Trump administration that we think is the antithesis of what’s required under existing civil rights laws as interpreted by the Supreme Court,” said Noreen Farrell, executive director of Equal Rights Advocates.

LGBTQ+ Issues

The EEOC’s attempt to abandon its gender identity discrimination suits marks a departure from its view of Title VII of the 1964 Civil Rights Act.

In 2024 harassment guidance, it said employers cannot misgender employees or bar them from using bathrooms that align with their gender identity.

Lucas said the EEOC will rescind that guidance when the confirmation of a third commissioner allows. But efforts to dismiss the federal court cases in Illinois, Alabama, California, and New York already appear to undermine the guidance.

The lawsuits alleged workplace bias through “deadnaming,” misgendering, and making derogatory and sexually inappropriate comments based on gender identity.

Jocelyn Samuels, one of two commissioners fired by Trump, said if withdrawing from the litigation is being used as a “backdoor approach” to “de facto rescind” the guidance it would be an an “improper use of the chair’s authority.”

The Justice Department successfully petitioned a Tennessee federal court on Jan. 23 to cancel oral arguments in one of several pending suits challenging the guidance itself. Republican-led states and religious groups have sued to block enforcement of the guidance, arguing that the Biden-era policy went beyond the scope of US Supreme Court precedent granting Title VII anti-discrimination rights based on gender identity.

The Alliance for Defending Freedom, a legal advocacy group representing the Christian Employers Alliance in a challenge over the guidance and PWFA rules, is “encouraged that the EEOC is starting to reverse its radical and illegal gender-identity mandates in the workplace,” ADF senior counsel Matt Bowman said in a statement.

He vowed that the group will push forward to eliminate those mandates through encouraging policymaking or litigation as the EEOC waits for a voting quorum.

The EEOC also wielded Trump’s order to “review” pending transgender bias charges, which must go through the EEOC’s administrative process before workers can sue in court. The commission removed nonbinary gender markers from bias charge intake forms as well. The moves could potentially discourage transgender workers from bringing discrimination claims, some attorneys said.

“If workers believe there is no ability to get help from the government they may not choose to file at all,” said Jenny Yang, a strategic partner at Working Ideal and former EEOC chair.

Artificial Intelligence

The EEOC under Democratic leadership published guidelines now scrubbed from its website outlining employer AI bias risks.

EEOC spokesperson Victor Chen confirmed the agency removed some AI-related documents while it reviews them in line with a Trump order that revoked Biden-era AI policies.

A now-removed 2023 technical assistance document clarified the commission’s stance that algorithmic hiring software and HR tools can create a “disparate impact.” The theory that neutrally applied workplace practices can discriminate if they disproportionately affect people in protected classes is key to building cases targeting AI bias.

“The Trump administration’s EEOC is unlikely to prioritize disparate impact claims related to AI discrimination, such as those based on zip code data, not just because of the administration’s deregulatory view of AI, but due to a broader push to dismantle disparate impact theory altogether,” Sam Mitchell, an attorney at Husch Blackwell LLP, said in an email.

A Feb. 5 memo from the attorney general directed the DOJ to limit use of disparate impact theories.

The EEOC guidelines under review also suggested an employer can be responsible under Title VII for using discriminatory AI that was developed by a vendor.

The documents “weren’t particularly controversial” and “provided good guidance for employers,” said Victoria Lipnic, a partner at Resolution Economics and former EEOC acting chair.

The technical assistance “got the issue on people’s radars,” but taking it down doesn’t change discrimination laws or employer obligations, said Rachel See, an attorney at Seyfarth Shaw LLP and former EEOC senior counsel for AI and algorithmic bias.

Abortion Question

The EEOC is showing early signs of dropping its interpretation of the PWFA, which requires employers provide reasonable accommodations for employees who are pregnant or have “related medical conditions.”

EEOC’s final rules issued under Democratic leadership include abortion within those protections, prompting red states and Christian groups to challenge them as going beyond the statute’s text, which does not mention abortion.

Trump’s DOJ unsuccessfully requested a stay on deadlines in one of the challenges Feb. 3 in Missouri federal court, arguing changes to the administration and commission “may have implications for this litigation.”

Lucas voted against the PWFA rules in 2024, arguing they can’t be reconciled with the law’s text.

The chair is also on a task force Trump established to eradicate agency “anti-Christian bias,” which could fuel elimination of abortion from the rules, even if the actual workplace accommodations for an employee getting an abortion are unlikely to exceed brief time off from work.

“These challenges don’t really get to the practical side of how employers are going to tell the difference between somebody who is requesting accommodation of a few hours of leave or a day or two to get abortion care versus miscarriage care, because they often look exactly the same,” said Madeleine Gyory, acting assistant professor at NYU Law School.