President Donald Trump has made several significant and sudden changes at the Equal Employment Opportunity Commission (“EEOC” or “the Commission”), the agency responsible for enforcing Title VII of the Civil Rights Act of 1964.

First, he appointed current Commissioner Republican Andrea Lucas as new Acting Chair and then removed Karla Gilbride (a nominee of former President Biden) from her role as EEOC General Counsel. Both of these decisions were routine and unsurprising for the start of a new presidential administration. President Trump then removed Commissioners Jocelyn Samuels and Charlotte Burrows, two of the three Democratic commissioners. This move was far from routine and is likely to be challenged in court.

These sweeping changes initiated by President Trump at the EEOC should be seen as a critical element of an ever-expanding goal of government-wide elimination, not just of DEI, but of all forms of affirmative action. This remaking of the EEOC should be viewed in parallel with Trump’s firing of two Democratic Members and the General Counsel at the National Labor Relations Board, revocation of Executive Order 11246, which contractually required covered federal government contractors and subcontractors to meet certain affirmative action obligations, and the possible elimination of the Office of Federal Contract Compliance Programs (“OFCCP”).

The shakeup at the EEOC – particularly, the removal of Samuels and Burrows – is intended to clear the road of challenges that might have inhibited Acting Chair Lucas’s pursuit of her (and President Trump’s) enforcement priorities, including what she described as “rooting out unlawful DEI-motivated race and sex discrimination,” a goal that aligns with Trump’s Executive Orders targeting Diversity, Equity, and Inclusion (DEI).

Prior to Samuel’s and Burrow’s removal, the EEOC had a Democratic majority, which would have limited Acting Chair Lucas’s authority to press her (and President Trump’s) priorities until at least mid-2026. The EEOC has a statutorily bipartisan structure, headed by five members appointed by the President and confirmed by the Senate. The President can appoint up to three members of his own party as staggered vacancies arise. The designated Chair is elevated over other Commissioners, each of whom is independent. With President Trump’s actions, there is currently no quorum and only an Acting General Counsel. This will halt issuance of new guidance and impact EEOC litigations on behalf of private sector employees. Even without a majority, Acting Chair Lucas can press her enforcement goals by bringing Commissioner Charges independent of her fellow Commissioners. Indeed, Acting Chair Lucas is quite familiar with this tool, having filed the most Commissioner Charges of any of her colleagues in the 2022 (12 charges), 2023 (15 charges), and 2024 (11 charges) fiscal years. She has already taken other actions as well, including removing the X gender marker during the intake process for filing a charge of discrimination, deleting gender ideology materials from the Commission’s internal and external websites and other platforms, and removing a feature that allows Commission employees to opt to identify pronouns next to their names within e-mails and internal messages.

Lucas’s Priorities and President Trump’s Related Executive Orders

Lucas has outlined several key priorities for her tenure, including, in her words:

• “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 at work
• protecting workers from religious bias and harassment, including antisemitism; and
• remedying other areas of recent under-enforcement.”

Notably, Samuels, Burrows, and Kalpana Kotagal (remaining Democratic Commissioner) issued a joint statement on X defending DEI practices after Acting Chair Lucas’s appointment.

In particular, Lucas’s statements regarding DEI programs align with President Trump’s Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “DEI EO”), that targets DEI programs by eliminating them in the federal government and encouraging the private sector to drop them, too. (Read our Insight for more about the DEI EO.) 

Additionally, Lucas’s priority to defend “the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work” is consistent with President Trump’s Executive Order entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (the “Biological Sex EO”). This EO states that “[i]t is the policy of the United States to recognize two sexes, male and female” and, among other directives, instructs federal agencies to adopt and apply these definitions and to “remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages.” 

The Biological Sex EO instructs agency heads with enforcement power (including Lucas and the EEOC General Counsel) to prioritize investigations and litigation to enforce the “rights and freedoms” it identifies. Additionally, the EO also calls for the prompt rescission of the EEOC’s Enforcement Guidance on Harassment in the Workplace (the “Enforcement Guidance”). In what was perhaps a foreshadowing of the looming dispute over the extent of the President’s authority over the EEOC, on January 28, 2025, the EEOC added the following message to the Enforcement Guidance web page: “This document was approved by the Commission on April 29, 2024, by a 3-2 vote. Any modification must be approved by a majority vote of the Commission.”

Other language in the Biological Sex EO aimed at the Attorney General could further impact the EEOC’s guidance and enforcement actions against private employers. Specifically, the Biological Sex EO instructs the Attorney General to issue guidance to:

• “…correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020),” wherein the U.S. Supreme Court held that discrimination on the basis of a person’s gender or sexual orientation is a violation under Title VII of the Civil Rights Act (“Title VII”). The EO states that the Biden Administration interpreted Bostock as requiring “gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act” and that “this position is legally untenable and has harmed women.” The Biological Sex EO further instructs the Attorney General to “issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent.”
• “ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964.”

While Acting Chair Lucas did not specifically mention the Pregnant Workers Fairness Act (PWFA) when announcing her enforcement priorities, she has in the past criticized the EEOC’s final regulations on the enforcement of the PWFA, which we discussed here. At the time, she took issue with the EEOC’s definition of “related medical conditions” covered by the law’s provisions that includes abortion, along with pregnancy and childbirth.

What’s Next for the EEOC?

President Trump is expected soon to nominate a new EEOC General Counsel, who is likely to be a staunch foe of DEI and affirmative action plans and who could litigate claims based on charges alleging harm from such policies, programs, or plans. Along with Acting Chair Lucas, there is one remaining Democrat – Kotagal, whose term expires in July 2027. There are now three open seats (those vacated by Samuels and Burrows, and one left open by Keith Sonderling, who President Trump recently named Deputy Labor Secretary). President Trump will likely seek to fill the empty seats with candidates who will press his and Acting Chair Lucas’s enforcement priorities. 

In the meantime, however, Samuels and Burrows are expected to challenge their removal in court. Burrows has already retained counsel. There is no provision in Title VII giving the President authority to remove an EEOC Commissioner. Samuels and Burrows will undoubtedly rely upon Humphrey’s Executor v. Federal Trade Commission, a 1935 opinion in which the Supreme Court of the United States (SCOTUS) analyzed the propriety of President Hoover’s removal of a Commissioner from the Federal Trade Commission (FTC). SCOTUS held that the FTC Act only allowed the President to remove an FTC Commissioner prior to the end of their term on specific grounds, which did not apply, and that a President cannot remove, or oust, a confirmed appointee of an independent commission or board without specific authority. SCOTUS wrote:

We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will.

SCOTUS had a chance to revisit Humphrey’s Executor precedent last term in Consumers’ Research v. Consumer Product Safety Commission; however, it denied certiorari. SCOTUS will likely have another bite at this issue in the near future, given the anticipated legal challenge to Burrows’ and Samuel’s removal, as well as that of President Trump’s similar recent removal of Members of the National Labor Relations Board, as we wrote about here. Justices Thomas and Gorsuch have expressed the view that Humphrey’s Executor should be overruled. Further, Samuels and Burrows potential reliance on Humphrey’s Executor as it stands, may be vulnerable in light of President Trump’s view regarding the effect of Seila Law v. Consumer Financial Protection Bureau; in particular, that the case gave him the authority to remove Gwynne Wilcox and Jennifer Abruzzo from the NLRB.

For now, there have been no changes to the EEOC’s guidance, and existing litigations and investigations will continue and new charges can be processed. Employers should stay informed about potential shifts in EEOC policy and work with counsel to ensure they remain compliant with federal guidelines.

Epstein Becker Green Staff Attorney Elizabeth A. Ledkovsky contributed to the preparation of this article.