EEOC Regains Quorum, Anti-DEI Campaign to Ramp Up

Brittany Panuccio was confirmed by the Senate this week to serve as Commissioner at the Equal Employment Opportunity Commission, giving the EEOC a Republican-majority quorum for the first time since President Trump terminated Commissioner Samuels (D) and Chair Burrows (D).

Why it matters: Now that it has a quorum, the EEOC will jump into action on its agenda, which will include leading the administration’s anti-DEI campaign and targeting alleged religious and “anti-American” discrimination.

What to expect:

• In general, employers can expect the Commission to prioritize specific enforcement initiatives against allegedly unlawful DEI practices, religious discrimination, and “anti-American” discrimination.
  
  
• Chair Lucas firmly believes that “DEI” itself is discriminatory, and employers can expect guidance and enforcement initiatives to reflect that perspective.
  
  
• The EEOC is likely to issue guidance similar to the DOJ that fleshes out what the Commission believes are “unlawful” DEI practices.
  
  
• The EEOC is also likely to issue guidance that reflects the administration’s position regarding sex and gender identity – i.e., that the law only recognizes biological definitions of sex, and does not protect against discrimination on the basis of gender identity.
  
  
  • Even before having a quorum, Chair Lucas has already steered the EEOC away from protecting against this type of discrimination.
    
    
• The Commission may rework EEO-1 reporting (including changing reported categories) or do away with it entirely.
  
  
  • It is highly unlikely that a Chair Lucas-led EEOC will resume collection of pay data.
    
    
• Previously finalized rules implementing the Pregnant Workers Fairness Act are likely to be rescinded and replaced, with the Commission certain to establish that the Act does not cover abortion.

Employer considerations:

• While the DEI front has been relatively quiet in the last few months – DOJ investigations against federal contractors notwithstanding – employers should expect the newly-empowered EEOC to reinvigorate the administration’s all-out campaign.
  
  
• Enforcing workplace discrimination and harassment policies against anti-gender identity behavior (such as refusing to use preferred pronouns) may become increasingly difficult under the new EEOC.
  
  
  • The EEOC may use whistleblowers within companies who provide examples of employers that require the use of preferred pronouns, for example.
    
    
• The EEOC cannot unilaterally change the law, including on any of the above issues or practices. While it may declare a practice to be illegal or legal, it is up to Congress to change the law or a judge to determine whether a specific practice is lawful.
  
  
  • Nevertheless, this has not stopped the administration from successfully exerting pressure on companies through threat of investigation, enforcement, or loss of business. Expect the EEOC to follow a similar playbook.