Reestablished EEOC Quorum Means New Push for Trump Policies

The confirmation of Brittany Panuccio restores a quorum at the US Equal Employment Opportunity Commission and empowers acting Chair Andrea Lucas to make significant changes to EEOC’s policies and enforcement priorities.

The commission has had just two members—Andrea Lucas and Kalpana Kotagal—since President Donald Trump removed Commissioners Charlotte Burrows and Jocelyn Samuels in January.

Trump nominated Panuccio, an assistant US attorney in the Southern District of Florida, to occupy the third seat on the EEOC in May. Her nomination cleared the Senate Committee on Health, Education, Labor, and Pensions on July 24.

Without a quorum, the EEOC continued to perform its core administrative functions, such as the intake and investigation of charges and issuance of technical assistance documents. However, it couldn’t take substantive actions, such as altering enforcement priorities or changing commission policies and regulations. The EEOC’s internal rules on the delegation of litigation authority further restrict it from filing amicus briefs or commencing or intervening in litigation that would involve a major expenditure of agency resources, generate public controversy, or implicate unsettled areas of the law.

Nevertheless, the EEOC has played a significant role implementing the current administration’s civil rights initiatives, including efforts to roll back diversity, equity, and inclusion in the private sector and narrow protections for transgender individuals under federal statutes that prohibit sex discrimination. Now the commission likely will play a more active role.

With a quorum, we expect the EEOC to update its policy and enforcement guidance to reflect the current administration’s priorities. In the longer term, the presence of a quorum will enable the EEOC to alter its strategic enforcement priorities and facilitate the development of high-profile litigation in priority areas, including what the acting chair (and presumably Panuccio) believe to be unlawful forms of DEI.

Changing Policy

Lucas has taken significant action to further the civil rights agenda of the current administration, even without a quorum.

She leveraged her control of administrative operations at the EEOC to order the removal of materials that “promote gender ideology” from internal and external EEOC resources, issue informal guidance on DEI-related discrimination at work, direct EEOC attorneys to withdraw litigation involving claims of gender identity discrimination, approve a record public settlement resolving antisemitism charges against a university, and instruct EEOC enforcement staff to close charges alleging disparate impact discrimination.

She also has used her authority to issue commissioner charges under Title VII to launch investigations into high-profile targets of the administration.

Her ability to align EEOC guidance and policy documents with those priorities, however, was limited without a quorum or majority, as she noted in several public statements.

Based on Lucas’s past statements, the commission likely will, at a minimum, modify or rescind the following:

• Enforcement Guidance on Harassment in the Workplace, particularly portions related to protections for transgender employees.
• Regulations on the Implementation of the Pregnant Workers Fairness Act, particularly portions related to the coverage of reproductive health under the definition of “pregnancy, childbirth, and related medical conditions.”
• EEOC’s Strategic Plan for FY 2022-2026
• EEOC’s Strategic Enforcement Plan for FY 2024-2028

Modifying or rescinding the harassment guidance, strategic plan, and strategic enforcement plan could be accomplished quickly with a simple majority vote. Modifying or rescinding the PWFA regulations would require the use of notice and comment rulemaking and take longer.

We expect the commission will also focus on developing new guidance related to DEI discrimination and protections for transgender employees under Title VII. The EEOC issued informal joint guidance with the Justice Department regarding DEI-related discrimination in March, but the administration has been notably absent from later statements of administration policy, including DOJ’s July 25 guidance, which addressed the application of Title VII to single-sex facilities access by transgender employees and the use of job qualifications that could serve as a proxy for discrimination.

Aligning Priorities

With a quorum, the EEOC can resume filing litigation involving unsettled or controversial issues. However, we don’t expect a sudden rush of filings now that Panuccio is confirmed.

The EEOC’s decision to close all pending disparate impact cases likely wiped out any major systemic litigation the EEOC was waiting to file, and most of the significant EEOC investigations involving administration priority areas, such as DEI and alleged discrimination, “gender ideology,” and religious rights vs. LGBTQ+ rights, remain in early stages. It will take time for the EEOC to build up its inventory.

We do expect an increase in amicus filings in cases related to these issues now that the commission can approve them.

A quorum also allows the EEOC to amend its strategic enforcement priorities. The broader strategic enforcement priorities of the agency are set by the commission and inform enforcement and litigation focus areas for years.

The EEOC released its most recent Strategic Enforcement Plan outlining those priorities in 2024. The substantive focus areas included eliminating barriers in recruitment and hiring, protecting vulnerable workers and people from underserved communities, advancing equal pay, and preserving access to the legal system.

The commission can now modify those to reflect the current administration’s and Lucas’ stated priorities of “rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces; protecting workers from religious bias and harassment; and remedying other areas that have been historically under-enforced by the agency.”

The legal landscape around employment discrimination has shifted rapidly in the last nine months, and a quorum at the EEOC will likely accelerate that pace. Employers should be prepared for substantial changes to EEOC policy and continued movement to align EEOC enforcement and litigation priorities with the civil rights agenda of the current administration.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Sharon Masling is partner at Morgan Lewis and co-leads the firm’s organizational culture practice, and was chief of staff and senior counsel to former EEOC Commissioner Chai Feldblum.

Pierce Blue is of counsel at Morgan Lewis and was an attorney-adviser to former EEOC Commissioner Chai Feldblum.

Amber Fox is an associate at Morgan Lewis and was senior adviser and women’s policy counsel to former EEOC Chair Charlotte Burrows.

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