Trump Takes Unprecedented Action and Other Updates at the EEOC

By Amelia J. Holstrom - Skoler Abbott P.C.

February 18, 2025

We are less than a month into President Trump’s second term in office and there has been a flurry of activity within the federal government.  While the overall focus seems to be on the series of Executive Orders President Trump signed since taking office, there are also big things happening at the Equal Employment Opportunity Commission (EEOC), a bipartisan Commission comprised of five presidentially-appointed members.  The EEOC also has General Counsel appointed by the President, and is responsible for enforcing the federal laws prohibiting discrimination in the workplace.  Here is what you may have missed.

Trump Fires General Counsel and Two Commissioners

It was no surprise that President Trump terminated Karla Gilbride, General Counsel for the EEOC, just a few days into his second term.  Four years ago, President Biden did the same thing when he took office – firing then EEOC General Counsel Sharon Gustafson – and the termination was upheld.  What came as a surprise, however, was the termination of two Commissioners, Charlotte Burrows and Jocelyn Samuels.  Such a move is unprecedented in the EEOC’s nearly 60-year history. Burrows and Samuels may challenge their terminations in court.  In fact, Burrows has already retained counsel.

At the time of their terminations, there were only four sitting members of the EEOC, as there was a vacancy to be filled by the new Administration.  As a result of the terminations of Burrows and Samuels, the EEOC now has only two remaining members, Andrea Lucas and Kolpana Kotagal.  The EEOC must have three sitting members for a quorum.  As a result, until another Commissioner is appointed by the President and confirmed by the Senate, the EEOC cannot take any action that requires a vote.  For now, Andrea Lucas, a Republican member of the Commission, is serving as acting Chair.

Expect Increased Scrutiny of DEI Programs

As we previously blogged, the Trump Administration issued Executive Orders related to diversity, equity, and inclusion (DEI) within days of taking office. Employers can read more about those Orders and what they mean here.   As a result, Acting Chair, Lucas issued a statement following her appointment that highlights the EEOC’s anticipated priorities under this Administration, including an increased focus on DEI in the workplace.  Specifically, she stated: “Consistent with the President’s Executive Orders and priorities, my priorities will include 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.”

Lucas’s focus on DEI initiatives is not surprising as she has long been critical of DEI initiatives in the workplace. Two weeks before President Trump was sworn in for his second term, Lucas responded to a post on X that stated in part: “Far too often, diversity “goals” lead to discrimination. As I’ve warned repeatedly while serving as an @USEEOC Commissioner, diversity-motivated discrimination is still unlawful discrimination. It’s long past time for employers to ditch DEI & return to EEO & merit.”

If you have a workplace DEI program, now is the time to consult with your labor and employment counsel about those programs to ensure they comply with applicable law.

A Renewed Focus on Gender Identity

Within hours of taking office, President Trump signed an Executive Order (EO) titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”  Following that EO, acting Chair Lucas announced a series of changes she was implementing at the EEOC to comply with the EO, including removing the prefix “Mx.” from various EEOC forms and removing the “X” gender marker on charge of discrimination forms.   Lucas also announced that one of her compliance, investigation, and litigation priorities at the EEOC will be to “defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work,” implying that EEOC may no longer support an employee’s ability to use the bathroom associated with their gender identity, rather than their biological sex.

If this is indeed the stance the EEOC intends to take, it is likely that we will see increased litigation over the issue at the federal level.  As you may recall, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex.  It does not expressly list gender identity in the statute. However, just under 5 years ago, in a landmark case, the Supreme Court of the United States held that sex discrimination under Title VII, encompassed discrimination on the basis of transgender status.  (You can read more about that case in a previous blog found here). Accordingly, the highest court of the United States has already ruled that federal law prohibits discrimination on the basis of gender identity, which means that we may soon see an increase in federal court litigation (and maybe even another Supreme Court case) over this particular issue.

Massachusetts: Don’t Forget to Comply with MA Law

Even if a court determines that individuals cannot use the bathroom associated with their gender identity under federal law, employers must still comply with Massachusetts law.  Massachusetts has its own anti-discrimination statute, commonly referred to as Chapter 151B.  Since 2012, that statute has expressly listed gender identity as a protected class.  A few years later, the public accommodation statute was amended to allow persons to use restrooms, locker rooms, and other spaces consistent with their gender identity.

All Massachusetts employers must comply with these laws.  Accordingly, employees and members of the public are entitled to use the bathroom associated with their gender identity, rather than their biological sex, in Massachusetts. Employers who fail or refuse to allow employees to do so will face legal liability under Massachusetts law.

Massachusetts employers also still have an obligation to address and stop any harassment in the workplace based on a person’s gender identity, along with many other protected characteristics.  Employers should ensure that their policies make it clear that harassment based on gender identity, sex, and all other characteristics protected by law is strictly prohibited and will not be tolerated in the workplace.

Bottom Line

We will have to wait to see how the priorities of the current Administration will play out at the EEOC, in Congress, and in the federal courts. There may be a delay because litigation is a slow-moving process and the EEOC does not currently have a quorum, so it cannot accomplish anything that requires a vote. We will continue to keep employers apprised of any developments.  In the interim, if you have any questions or are served with a charge of discrimination, you should promptly speak with employment counsel.

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