More Bite Behind It: New EEOC Quorum Empowers Agency To Entrench Its Positions

With the confirmation of Republican Brittany Panuccio to the U.S. Equal Employment Opportunity Commission (EEOC), the EEOC has a quorum for the first time since January 2025. Commissioner Panuccio joins Acting Chair Andrea Lucas to create a Republican majority. The other commissioner, Kalpana Kotagal, is a Democrat. With the three-member quorum, the EEOC can now engage in rulemaking, issue policy, rescind prior rules and initiate certain types of litigation alleging widespread or systemic discrimination.

Now that the EEOC (once again) has these powers, how might it wield them? Even though the EEOC has lacked a quorum, it has not lacked its voice. Acting Chair Lucas, on her first day in her position, laid out the EEOC's priorities under her leadership:

"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."

Prior to Commissioner Panuccio's confirmation, the EEOC had already wielded its limited power to these ends by issuing guidance, filing lawsuits and withdrawing from litigation that did not support Acting Chair Lucas's goals. With the quorum, employers should expect more of the same, but with more bite behind it.

• Diversity, Equity and Inclusion (DEI): Without a quorum, the EEOC threw its support behind President Trump's efforts to dismantle DEI initiatives in the workplace, but it was limited in doing so to issuing non-binding guidance documents. With a quorum, the EEOC can file more lawsuits against employers it believes are engaging in "illegal DEI," including lawsuits that allege a pattern and practice of discrimination, potentially sweeping a number of employers into the litigation. Additionally, the EEOC can now engage in rulemaking to attempt to codify its positions related to DEI as law.
• Pregnant Workers Fairness Act: In 2024, the EEOC passed regulations interpreting the Pregnant Workers Fairness Act (PWFA) which requires employers to provide reasonable accommodations for pregnant workers. Then-commissioner Andrea Lucas objected to the final rule, arguing that it extended the PWFA beyond what the statute's text could bear. With a quorum, Acting Chair Lucas may seek to repeal the current rule and re-engage in the rulemaking process.
• Sex Discrimination and LGBTQ Issues: Expect the EEOC to pursue litigation and rulemaking that prioritizes protecting single-sex spaces, aligning with the Trump administration's understanding of "sex" to mean "an individual's immutable biological classification as either male or female." Despite this, employers should be aware that the U.S. Supreme Court has held that Title VII prohibits discrimination against a person because of their sexual orientation or gender identity.
• Combatting Religious Discrimination: Before having a quorum, the EEOC had already increased the number of merit lawsuits it had filed alleging religious discrimination. Expect this to ramp up with the quorum as the EEOC can now challenge circuit court precedent and issue formal guidance.

The EEOC's new quorum represents a shift in its authority, but not its direction. Expect more of the same focus, just with more teeth to it. To this end, employers should:

• Review their DEI policies and programs to ensure that they are not "illegal DEI" policies or programs. For guidance from the EEOC as to what this means, visit this link.
• Continue to take accommodation requests from pregnant employees seriously by recognizing when such a request is made and engaging in the interactive process, as always, in good faith.
• Honor employees' religious convictions and seek to accommodate them to the extent required by law. The Supreme Court's decision in Groff v. DeJoy can serve as a guide for employers.

While the new EEOC quorum might leave employers wondering what the future might hold, employers tuned into the political landscape will find the change to be gradual, not sharp. This is no change in the EEOC's direction. Employers already adjusting to the direction of the new administration might find that this impacts little. For employers that have not, this is an opportunity to correct course.

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