War on DEI to Ramp Up as EEOC Regains Quorum

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

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:

• Employers can expect the Commission to prioritize specific enforcement initiatives targeting allegedly unlawful DEI practices, religious discrimination, and “anti-American” discrimination.

• Chair Lucas holds the view that DEI itself is inherently discriminatory, and forthcoming guidance and enforcement initiatives are likely to reflect this perspective.

• The EEOC is likely to issue guidance similar to the DOJ, detailing DEI practices it considers unlawful.

• The EEOC is also likely to issue guidance that reflects the administration’s position regarding sex and gender identity – i.e. , that the law recognizes only biological definitions of sex, and does not protect against discrimination on the basis of gender identity (at least to a certain extent).

  • Even before having a quorum, Chair Lucas has already steered the EEOC away from protecting against this type of discrimination.

• The Commission may revise or eliminate EEO-1 reporting requirements, including reported race, gender, or ethnicity categories.

  • Pay data collection is unlikely to resume under a Chair Lucas-led EEOC.

• Previously finalized rules implementing the Pregnant Workers Fairness Act may be rescinded or replaced, likely clarifying that the Act does not cover abortion.

Employer considerations:

• Employers should expect a reinvigorated focus from the EEOC that aligns with the administration’s all-out campaign.

• Enforcing employer policies against anti-gender identity behaviors (e.g., refusing to use preferred pronouns) may become increasingly complex under the new EEOC.

  • The EEOC may leverage whistleblowers reporting on employer practices like mandatory pronoun usage, for example.

• While the EEOC may declare a practice to be illegal or legal, it cannot unilaterally change the law, including on any of the above issues or practices. It is ultimately 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, including targeted investigations and lawsuits against individual companies.

Bottom line: Employers should monitor EEOC actions closely and anticipate increased scrutiny on DEI-related practices, gender identity policies, and broader workplace discrimination enforcement under the new quorum.