By: Taylor Iaculla and Andrew L. Scroggins

Seyfarth Synopsis: Thirty days into the Federal government shutdown, few personnel of the U.S. Equal Employment Opportunity Commission (“EEOC”) are available and operations have been slashed. However, this does not mean that employers can put aside all EEOC-related concerns until the government opens again. New charges continue to be filed—though employers remain in the dark about the content or volume of potential claims—and deadlines continue to apply. While this pause may feel like a temporary reprieve, it is important for employers to stay alert and consider how their charge activity will be impacted by a continued shutdown.

The EEOC’s Contingency Plan

The EEOC published a contingency plan to be implemented in the event of a shutdown. Per the plan, nearly 93% of its workforce has been furloughed, and the EEOC has suspended all “nonessential” functions, significantly curtailing its operations. These “nonessential” functions include investigations into discrimination charges, as well as mediations, hearings, and outreach and education events. Likewise, Freedom of Information Act requests will not be processed, public inquiries will not be responded to, and the agency will not file new cases or litigate—except in instances where no stay or extension has been granted by the court for pending matters.

On the other hand, the funding lapse does not pause the 180- or 300-day statutory deadlines for filing a charge of discrimination. Thus, ongoing “essential” activities include critical functions related to charge intake and processing, overseen by the Office of Field Programs (“OFP”). Specifically, the OFP has a small number of personnel to assess and prioritize cases requiring immediate attention to ensure complainants do not miss their statutory deadlines.

Notably, the funding lapse also does not impact timelines for those charging parties who received notice of their right to sue before the shutdown began. The 90-day deadline for charging parties to file a lawsuit in federal court continues to run during the shutdown.

Impacts for Employers

The fact that complainants remain able to file charges with the EEOC means employers should prepare for the possibility that they will receive more notices of charges filed with and investigated by state agencies, which remain open, or an atypical influx of charges filed with the EEOC when the shutdown ends.

The ongoing charge intake without having EEOC personnel available to investigate and close charges also will only exacerbate the pre-existing backlog of cases before the EEOC. In addition, the longer the shutdown continues, the more likely it becomes that the EEOC will lose more employees to attrition, slowing charge processing even further. The ripple effects are difficult to forecast, but possibilities include more investigations handed to state agencies, longer investigation times if the EEOC decides its aim is to resolve charges on the merits, or a shorter timeline before right to sue letters are issued if the EEOC decides its aim is to trim its charge backlog.

Employers also should bear in mind that the contingency plan does not specify what employers’ obligations are with respect to existing deadlines to respond to charges of discrimination. Given this, employers should consider adhering to existing deadlines for responding to charges of discrimination, or submitting formal extension requests through the EEOC’s Respondent Portal to memorialize that the employer will be taking additional time in light of the ongoing shutdown.

Conclusion

The government shutdown has significantly impacted the operations of the EEOC, but employers should remain vigilant. For charges resolved by a notice of right to sue letter before the shutdown began, employers should be aware that charging parties are subject to the same deadlines for file their claims in Federal court. For pending charges, employers should consider either meeting response deadlines that already were set, or filing extension requests to preserve their rights. In addition, the EEOC continues to accept new charges, and employers will have no visibility to the volume or content of those charges until the shutdown ends and EEOC operations fully resume. Employers should watch for notices from state agencies stepping in to fill the void left by the EEOC, ad an influx of charge activity when the shutdown ends.

For more information on the EEOC or how the Federal government shutdown may affect your business, contact the authors—Taylor Iaculla and Andrew Scroggins—or a member of Seyfarth Shaw’s Complex Discrimination Litigation Group.

By: Christopher J. DeGroff, Andrew L. Scroggins, Samantha L. Brooks, and James P. Nasiri

Seyfarth Synopsis: While we viewed the EEOC’s Fiscal Year 2024 as “sluggish,” the Commission entered FY 2025 with a hefty budget, a brimming pipeline of charges, and a Democratic majority of Commissioners, suggesting a robust year of EEOC-initiated litigation was on the way. The EEOC’s fiscal year closed today, and what promised to be a watershed year was anything but.  The Trump Administration’s swiftly implemented leadership changes, budget cuts, and dramatic shift in priorities led to a roller-coaster for field staff and employers alike. Ultimately, the EEOC filed just 93 lawsuits in FY 2025, marking a ten-year low in Commission litigation activity. Despite a notable pullback in litigation activity, a close analysis of FY 2025 filings can help employers identify the EEOC’s priority areas and understand what to expect going forward.

In previous administrations, the EEOC’s litigation arm was extraordinarily active, filing as many as 300 merit lawsuits in a given year. These high levels of EEOC filing activity dropped significantly under the first Trump Administration, and this trend continued through the start of the COVID-19 pandemic. For instance, we previously reported totals of 94 merit filings in FY 2020, 111 filings in FY 2021, and 94 filing in FY 2022 (the EEOC’s fiscal year runs from October 1 to September 30).

By FY 2023, however, the EEOC under the Biden administration had installed a new Democratic Commissioner (Kalpana Kotagal) and General Counsel (Karla Gilbride), as well as securing a sizable budget increase from Congress. With these pieces in place, the EEOC revved its engines and filed 144 merit lawsuits in FY 2023, which marked a five-year high for the Commission. Many expected this momentum to continue into FY 2024 in light of the agency having its first Democratic majority in years. Yet, the EEOC surprisingly eased off the gas on its litigation activity in FY 2024, filing only 96 merit lawsuits last fiscal year.

With this background in mind, the EEOC’s FY 2025 started obscured by questions surrounding an upcoming presidential election and how it would shape the direction of EEOC enforcement. Following the election, President Trump took a series of swift actions, some unprecedented, that had a significant impact on EEOC leadership and enforcement. In late January 2025, President Trump took the anticipated steps of elevating Andrea Lucas to Acting Chair of the EEOC and terminated EEOC General Counsel Karla Gilbride. (President Biden had terminated the previous EEOC General Counsel, a Trump nominee.)  In an action without precedent, President Trump also fired EEOC Commissioners Charlotte Burrows and Jocelyn Samuels, both of whom had years left on their appointed terms. This left the EEOC without a quorum, as only Acting Chair Lucas and Commissioner Kalpana Kotagal remained as Commissioners. (A Trump appointee awaits Senate confirmation; Acting Chair Lucas was re-confirmed to remain as Commissioner for another five-year term.)

Which leads us to the most recent fiscal year from October 2024 through September 2025. The EEOC filed just 93 merit lawsuits this fiscal year. This represents not only a ten-year low, but also one of the lowest numbers of total filings lodged by the Commission in the past three decades. To put this number into context, in FY 2023, the EEOC filed 71 lawsuits in September alone. While there are still meaningful takeaways from the EEOC’s areas of focus in FY 2025, the bottom line is that EEOC litigation activity has now remained at historically low levels for the second consecutive year.  But what can we learn from the matters that actually hit the docket?

FY 2025 Cases Filed By Month

At the end of every EEOC fiscal year, the Seyfarth team analyzes each EEOC filing to identify key trends and provide our one-of-a-kind analysis. Beginning with the timing of the EEOC’s filings, the graphic below displays the number of EEOC lawsuits filed by month from FY 2022 through FY 2025.

In most years, the EEOC starts its fiscal year at a fairly slow pace.  This year, however, the Commission hit the ground running by filing 24 lawsuits in the first four months of its fiscal year. The EEOC filed 15 lawsuits in January alone, with the timing suggesting a response to the presidential election and EEOC enforcement personnel seeking to take action before a change in administration. After the change in administration, the EEOC also achieved a five-year high in terms of June filings when it launched 18 lawsuits in June 2025. While September was (once again) the EEOC’s busiest month, it was far less active at the end of its fiscal year as compared to prior years. The EEOC filed 35 lawsuits in September 2025, compared to 56 September filings in FY 2024, 71 September filings in FY 2023, and 46 September filings in FY 2022.

FY 2025 Cases Analyzed By EEOC District Office

In addition to tracking the total number of filings, we also monitor which of the EEOC’s 15 District Offices are most actively filing new cases. In FY 2025, we saw the Chicago District Office return to its typically-high levels of filing activity by leading the pack with 11 merit lawsuit filings. Behind Chicago, Philadelphia (8 filings), Indianapolis (8 filings), and Houston (8 filings) also had busy years, which is in keeping with recent trends from those offices.

Conversely, Districts that have traditionally been very busy— such as Los Angeles, New York, and San Francisco—were noticeably quiet this year, as these Offices filed only 4, 6, and 3 lawsuits, respectively. This drop in filings from the West Coast Offices has now remained consistent for the last several fiscal years, and stands in stark contrast to the Obama-era EEOC, under which these West Coast Offices filed dozens of lawsuits per year.

Analysis of the Types of Lawsuits Filed in FY 2025

While the quantity and location of EEOC filings offer a view into the Commission’s litigation activity in a given year, analyzing the types of claims being asserted in EEOC lawsuits separately provides valuable insights regarding the EEOC’s specific areas of emphasis. In FY 2025, despite the continued decrease in overall filings, the EEOC’s filing numbers generally aligned with prior years. This means that the vast majority of EEOC lawsuits were filed under Title VII and the Americans with Disabilities Act. The Commission also filed nine lawsuits under the Age Discrimination in Employment Act in FY 2025. Additionally, while Equal Pay Act claims are typically not a common target for EEOC lawsuits, the EEOC did not file any EPA claims this fiscal year.

The ADEA is typically the third-most commonly statute cited in EEOC lawsuits, but in FY 2025, the ADEA was overtaken by filings asserting pregnancy-related violations. This fiscal year, the EEOC filed 10 lawsuits under the Pregnancy Discrimination Act and/or the newly-enacted Pregnant Workers’ Fairness Act. When considering claims asserted on the basis of either sex or pregnancy, the EEOC filed a whopping 37 cases alleging such claims. This emphasis on sex and pregnancy-related issues aligns with public statements by Acting Chair Lucas, who has placed an emphasis on enforcing protections in both of these areas.

It is important to note, however, that the EEOC under Acting Chair Lucas has pursued sex-based discrimination without stepping into the area of LGBTQ-related workplace issues. Indeed, on January 28, 2025, the EEOC issued a statement in which Acting Chair Lucas emphasized, “[b]iological sex is real, and it matters . . . Sex is binary (male and female) and immutable. It is not harassment to acknowledge these truth—or to use language like pronouns that flow from these realities, even repeatedly.” To that end, the EEOC in FY 2025 filed only two lawsuits concerning transgender workers or other gender identity issues: EEOC v. Starboard Group, Inc., et al., No. 3:24-cv-2260 (S.D. Ill.) and EEOC v. Brik Enterprises, Inc., et al., No. 2:24-cv-12817 (E.D. Mich.). Both of these lawsuits were filed in October 2024 during the Biden administration. It did not take long for the EEOC to reverse course on these matters. Following President Trump’s January 20, 2025 Executive Order titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” the EEOC moved to dismiss both of these actions (although private plaintiffs intervened to continue pursuing these claims). No such actions have been filed since.

Taking a closer look at these numbers, the ADA once again remained a focus for the EEOC. Despite the change in administration and the subsequent shifts to EEOC leadership, ADA issues remained at the top of the EEOC’s priority list. The Commission filed 34 disability-related lawsuits in FY 2025, which is more than it filed in FY 2022, despite overall activity in FY 2022 far outpacing filings this year. In terms of the specific disabilities at issue in these lawsuits, the EEOC built on a trend that started last year by continuing to sue on behalf of individuals with hearing or vision impairments, and those that may be difficult for employers to identify and accommodate, such as depression, anxiety, PTSD, and other mental health conditions.

On the other hand, the EEOC filed significantly fewer cases asserting race or national origin discrimination in FY 2025. The Commission filed only three such lawsuits in FY 2025, compared to 14 in FY 2024, 27 in FY 2023, and 17 in FY 2022. In fact, FY 2025 saw the lowest number of race / national origin-based filings by the EEOC in at least a decade. Two of three lawsuits that the EEOC did file were both grounded in theories of reverse discrimination. (EEOC v. Leopalace Guam Corp., No. 1:25-cv-4 (D. Guam) asserted claims of discrimination against non-Japanese workers, while EEOC v. Seward and Son Planting Co., No. 4:25-cv-155 (N.D. Miss.) asserted claims of discrimination on behalf of Black, American workers, with allegations that the employer gave preference to non-Black, non-American workers.) Along these same lines, the EEOC published a press release in February 2025 in which Acting Chair Lucas committed to protecting American workers from anti-American bias. 

Another interesting takeaway from this year’s filing activity concerns religious discrimination. In 2023, we reported on the striking rise of over 600% in religious discrimination charges during the COVID-19 pandemic. Despite this increase from 2,111 religion-based charges in FY 2021 to nearly 14,000 religion charges in FY 2022, the EEOC filed just four religion-based lawsuits in FY 2024. In FY 2025, however, it appears the backlog of EEOC religious discrimination charges has fed the EEOC’s litigation activity, as the Commission filed 11 lawsuits asserting religious discrimination or failure to accommodate religious beliefs under Title VII. This trend once again aligns with the EEOC’s stated enforcement agenda, as the EEOC released a public statement in August 2025 touting its efforts to protect religious freedom in the workplace. Acting Chair Lucas was quoted in the statement as commenting that, “[d]uring the previous administration, workers’ religious protections too often took a backseat to woke policies. Under my leadership, the EEOC is restoring evenhanded enforcement of Title VII—ensuring that workers are not forced to choose between their paycheck and their faith.”

Our analysis of the EEOC’s FY 2025 filing activity has revealed a number of other important trends that should be on every employer’s radar. As a preview to our annual EEOC-Initiated Litigation Report (click HERE to view last year’s Report), other relevant takeaways from the EEOC’s FY 2025 include:

  • Industry: Nearly one out of five of the EEOC’s merit lawsuits were filed against employers in the healthcare industry. Additionally, while the Commission continued its practice of suing several household name brands, the EEOC unexpectedly focused much of its litigation efforts on very small regional or local businesses, some barely employing enough people to meet the definition of an “employer” under EEO statutes. The Commission also filed multiple lawsuits against state/local government entities, which is not typical of the EEOC.
  • Scope: Since 2006, the EEOC has made “the identification, investigation, and litigation of systemic discrimination cases (i.e. pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area)” a top priority in its litigation playbook. Despite this clear and consistent focus on systemic litigation, the EEOC filed the vast majority of its FY 2025 lawsuits (nearly 75%) on behalf of just one individual. This is likely connected to the EEOC’s lack of a quorum; large-scale “class” cases require a Commission vote, and the EEOC currently does not have the pieces in place to make such moves. This is explained in more detail below.
  • Timing: Another aspect of our analysis concerns the average timing of an EEOC investigation and lawsuit, i.e., how many days typically spent in conciliation, and how many days typically elapse between a failed conciliation and a lawsuit filing. In FY 2024, the EEOC spent an average of 80 days in conciliation, and another 116 days between the notice of conciliation failure and the filing of a complaint. In FY 2025, the average time spent in conciliation was roughly the same (83 days), but in contrast to FY 2024, the EEOC took an average of 205 days from a failed conciliation before it filed a complaint in FY 2025.

Returning to the issue of the generally narrower scope of the claims filed this year, the absence of a quorum constrains the EEOC. When, as now, there is not a quorum of Commissioners, the General Counsel has power under an earlier delegation of authority to file routine cases. However, the delegation of authority does not extend to filing cases involving: allegations of systemic discrimination; allegations of pattern or practice discrimination; major expenditures of agency resources, including staffing and staff time, or expenses associated with extensive discovery or expert witnesses; positions contrary to precedent in the Circuit in which the case will be filed; and other cases reasonably believed to be appropriate for approval by the Commission, e.g., cases that implicate areas of the law that are not settled and cases that are likely to generate public controversy. The class and collective claims filed as FY 25 drew to a close may cross those lines, inviting challenges to the Agency’s ability to litigate the cases.

Implications For Employers

While FY 2025 was another quiet year in terms of EEOC litigation, a close analysis of the EEOC’s strategic litigation decisions can help employers identify key compliance areas going forward. For instance, although the EEOC under the Trump Administration is unlikely to pursue LGBTQ-related litigation, the Commission remains focused on protecting employees’ religious rights and vigorously enforcing pregnancy discrimination laws in the workplace. Moreover, while the EEOC has traditionally focused its litigation efforts on larger corporations, the EEOC’s FY 2025 filing activity demonstrated its willingness to sue smaller regional businesses and even local government entities. It is also evident that employers in the healthcare industry—as well as those in the Chicago, Indianapolis, and Philadelphia regions—should be particularly careful with respect to EEOC investigations potentially evolving into litigation.

Finally, EEOC activity should not be viewed in a vacuum.  The private plaintiff’s bar often follows in the path cut by the EEOC.  Anecdotally, we already see this “follow-the-leader” phenomenon by private litigants in courts around the country.  Employers should view these trends not merely as a question of whether the EEOC will noisily target certain areas, but the vulnerabilities to private litigation that follow increased attention and focus on issues highlighted by the EEOC.

We will continue to monitor these changes closely and keep readers apprised of developments. And, as always, we will keep up-to-date on EEOC data amid the ever-changing political climate and another quiet year at the Commission.

For more information on the EEOC or how the Commission’s filing activity may affect your business, contact the authors—Christopher DeGroff, Andrew Scroggins, Samantha Brooks, and James Nasiri—or a member of Seyfarth Shaw’s Complex Discrimination Litigation Group.

By: Samantha L. Brooks, Andrew Scroggins, and Chris DeGroff

Seyfarth Synopsis: The Acting Chair of the EEOC has been renominated to serve another term as commissioner, and testified at her confirmation hearing on June 18, 2025.  Confirmation is required for her to continue as Acting Chair.  Ms. Lucas’ testimony confirmed her allegiance to the Trump administration, and its EEO-related priorities.

On June 18, 2025, Andrea Lucas, Acting Chair of the Equal Employment Opportunity Commission, testified at a confirmation hearing before the Senate Committee on Health, Education, Labor and Pensions.  Ms. Lucas was appointed by President Trump during his first administration in 2020 for a term running through July 1, 2025, and was appointed by him as acting chair in January 2025.  In March, President Trump renominated Ms. Lucas as EEOC commissioner for a second term that would extend her tenure through July 2030.

Ms. Lucas’ time as acting chair to date reflects her alignment with President Trump’s executive orders and other policy priorities, including de-prioritizing claims asserted by nonbinary and transgender workers, rolling back protections for transgender workers (and sharply criticizing what Ms. Lucas called Biden-era “weaponiz[ation]” of the EEOC in this area), and vocally opposing diversity, equity, and inclusion programs, and turning the EEOC’s focus toward anti-American national origin discrimination and protecting workers from religious bias and harassment.

During her testimony, Ms. Lucas confirmed her continued alignment with the Trump administration’s priorities.  In her prepared remarks, Lucas vowed: “As the head of the EEOC, I am committed to dismantling identity politics that have plagued our civil rights laws.”  She also referred to President Trump’s “landmark civil rights executive orders” and said “President Trump has given the EEOC the most ambitious civil rights agenda in decades.”

Although Ms. Lucas was clear she intends to enforce President Trump’s executive order recognizing only two sexes and deprioritizing claims regarding discrimination against transgender individuals, Ms. Lucas declined to answer a question about how the EEOC will handle discrimination complaints from transgender workers, in light of a purported April 2025 order to classify all new gender identity-related discrimination cases as its lowest priority, which has the effect of  deeming such claims as meritless, citing agency deliberative process privileges.

Ms. Lucas also echoed the Trump administration view that the EEOC is not an independent federal agency.  Previously, the EEOC has viewed itself as an independent federal agency, a position also staked out on the Department of Labor’s website; however, during the hearing, Ms. Lucas stated that “the EEOC is not an independent agency” but rather, is an executive agency that must comply with the President’s orders.  Lucas continued: “If the president gives me a lawful directive, which I’m confident that he would do, then I would obey that directive.”  She also said: “I think it is entirely appropriate for the president to direct the enforcement actions of the agency, consistent with the law.”  Nevertheless, Lucas declined to answer a question if she would obey orders to dismiss or file particular lawsuits against companies, again citing agency deliberative process privileges.

Lucas is expected to be confirmed by the Republican-controlled Senate, though the timing for a final vote is not known at this time.

Since January, when President Trump fired two of the EEOC’s Democratic commissioners, the EEOC has been without a quorum.  This has inhibited Ms. Lucas’ and the EEOC’s ability to issue or amend (or rescind) guidance and regulations, and otherwise pursue Lucas’ and President Trump’s priorities.  President Trump recently nominated Brittany Panuccio, currently an assistant U.S. attorney in the Southern District of Florida, to serve as a commissioner and, if confirmed (though, confirmation will take some time), Panuccio would give the EEOC a quorum. 

Implications for Employers: If Ms. Lucas is confirmed and the EEOC obtains a quorum, we can expect to see the EEOC’s priorities, including investigation and litigation priorities, and rule-making priorities, to stay centered around the Trump administration’s stated goals: investigating and ending DEI practices, and defending a binary view of sex and related rights. Employers should continue to monitor their policies and practices in light of this shift in agency focus.

For more information about the EEOC, its composition and litigation activity, please see Seyfarth Shaw’s EEOC-Initiated Litigation – 2025 Edition or contact your Seyfarth attorney or the authors of this post.

Seyfarth Synopsis: On June 5, 2025, the U.S. Supreme Court changed course and dismissed the writ of certiorari that it previously had granted in Laboratory Corporation of America Holdings v. Davis, No. 24-304 (U.S. June 5, 2025).  In doing so, the Supreme Court passed on the chance to decide the question that had been presented, namely: whether federal courts may certify a Rule 23 damages class that includes both injured and uninjured members.  These sorts of issues are frequently litigated in the employment context.  The Supreme Court’s decision is not helpful to employers in the near term, since it does not restrict these class actions as a rule in federal court.  However, the Supreme Court has not closed the door on revisiting the issue, and the inclusion of uninjured class members can still provide grounds for defendants to oppose certification in the meantime. 

Case Background

Defendant Labcorp offered patients on-site, self-service, touchscreen kiosks to check in for their appointments at its patient service centers.  These touchscreen kiosks were offered in addition to either checking in at the front desk or the online check-in process that patients could complete before they arrived.  The kiosks were not accessible to blind patients unless the patients had assistance.  To address the accessibility issue, Labcorp ensured that its patient service centers had at least one employee available who could check in patients at the front desk using the same technology used in the kiosks.     

Luke Davis and Julian Vargas—both of whom are legally blind—filed a class action against Labcorp under Title III of the Americans with Disabilities Act (“ADA”) and the California Unruh Civil Rights Act (“Unruh Act”), which considers violations of the ADA to constitute violations of the state law and provides for a minimum of $4,000 in damages for each offense.  The plaintiffs alleged that Labcorp denied them and other blind individuals full and equal access to the patient service centers because the kiosks were inaccessible to them.  However, the record indicated that many class members were not actually harmed by Labcorp’s new kiosks on account of not being able to use them because, for instance, they would prefer to use the front desk anyway.

The district court certified a class of potentially more than 100,000 blind individuals seeking nearly $500 million in damages under the Unruh Act per year.  While Labcorp’s petition for interlocutory appeal was pending with the Court of Appeals for the Ninth Circuit, the district court clarified the class definition without materially altering the composition of the class or changing its original class certification order, which the Ninth Circuit subsequently affirmed.

The Supreme Court’s Decision

The U.S. Supreme Court initially granted certiorari to decide whether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.  Before reaching the question, however, in a single-sentence per curiam decision, the Supreme Court reversed course and ordered that the writ of certiorari was dismissed as “improvidently granted.”  Those eagerly awaiting the answer to the question are now left to wait for the next test case.

Justice Kavanaugh, in the lone dissent, raised some frustrations likely to be shared by those left waiting.  Presuming that his colleagues did not “want to deal with” the plaintiffs’ threshold argument that the matter was moot because the district court’s original class certification order was supplanted by its subsequent order clarifying the class definition, Justice Kavanaugh rejected the argument as “insubstantial” as, among other things, the subsequent order did not materially change the original order that actually granted class certification and that Labcorp appealed. 

Justice Kavanaugh also addressed the merits with respect to the question presented.  Justice Kavanaugh characterized the case as “straightforward” under Rule 23 and the Supreme Court’s precedents.  While Rule 23 requires that common questions predominate in damages class actions, common questions do not predominate in a class consisting of both injured and uninjured members.  Justice Kavanaugh also agreed with the United States, which had joined as amicus curiae, that “if there are members of a class that aren’t even injured, they can’t share the same injury with the other class members.”  Justice Kavanaugh also clearly signaled where he will stand if the issue reaches the Supreme Court in the future; he would have held that federal courts may not certify a proposed damages class under Rule 23 when the class includes both injured and uninjured members.

Justice Kavanaugh warned that the Ninth Circuit’s decision to the contrary will “generate serious and real-world consequences.”  Pointing to the half a billion dollars a year that Labcorp was facing in potential damages, Justice Kavanaugh explained that classes “overinflated with uninjured members” can force companies into agreeing to “costly settlements” under the threat of “massive liability.”  In turn, companies pass on these costs to consumers, retirement account holders, and workers, ultimately harming each of these groups, among others. 

Implications For Employers

This decision had the potential to significantly limit class actions in federal court.  As Labcorp noted in its petition for a writ of certiorari, “around 10,000” class action lawsuits are filed annually.  Citing Seyfarth’s ADA Title III blog, Labcorp also pointed out that half of the recent record high in ADA cases like its own were filed in California, where plaintiffs may attempt to recover statutory damages under the Unruh Act based on a purported violation of the ADA, even if the plaintiffs were not actually injured.  And while not pertinent to Labcorp’s argument, it is also true that these issues are frequently litigated in the employment context. 

Although the Supreme Court’s ruling was anticlimactic, the question is likely to resurface, and very well may regain traction.  There remains a circuit split over the issue.  And, although he did not cite it in his dissent, Justice Kavanaugh’s majority opinion in TransUnion LLC v. Ramirez—in which the Supreme Court held that every class member must have Article III standing to recover individual damages—was joined by four of his colleagues who are still on the bench. 

In the meantime, employers and other corporate defendants of class actions should continue to consider the issue in crafting their defense strategy.  For example, evidence concerning uninjured class members may reveal that whether members of a proposed class were injured raises evidentiary questions that likely will vary by class member, which individualized inquires may predominate and preclude class certification. 

By: Annette Tyman, Rachel V. See, Andrew L. Scroggins, and Christopher J. DeGroff

Seyfarth Synopsis: On April 23, 2025, President Trump issued an Executive Order entitled “Restoring Equality of Opportunity and Meritocracy.” The Order declares a sweeping new federal policy: “It is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.” The Order directs all federal agencies, including the EEOC and Department of Justice, to deprioritize any enforcement and litigation regarding disparate impact claims. It further directs agency heads across the federal government to assess all existing regulations, guidance, rules, or orders (including existing consent judgments) that impose disparate-impact liability, and detail steps for their amendment or repeal within 30 days. Beyond the immediate implications for employers facing government litigation or enforcement actions, the Order has significant ramifications in the selection and testing arena, including for AI developers and deployers, as it signals that the federal government under the current administration will not allocate investigation, enforcement, or litigation resources into disparate impact claims against employers using AI tools or other tests. This dramatic shift away from what had been an enforcement priority creates complex interactions with private rights of action under Federal law, state law protections, and local ordinances that continue to recognize disparate impact liability.

Disparate impact liability is a legal theory contending that practices that appear neutral on their face can still be considered discriminatory if they disproportionately and adversely affect members of protected classes. Disparate impact liability is part of existing civil rights laws not just in employment, but in housing, education, credit and lending, government contracting, and other areas. The theory was first established by the Supreme Court in 1971 in Griggs v. Duke Power, 401 U.S. 424 (1971), which held that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation”. In 1991, Congress amended Title VII to add Section 703(k), which codified how “an unlawful employment practice based on disparate impact” could be established.

The Order and its accompanying fact sheet stake out a different position that characterizes disparate impact theory as fundamentally at odds with constitutional principles. The fact sheet states that disparate impact theory “violates the Constitution’s guarantee of equal treatment for all by requiring race-oriented policies and practices to rebalance outcomes along racial lines” and that it “undermines civil-rights laws by mandating discrimination to achieve predetermined, race-oriented outcomes.” Section 1 of the Order further states, “Disparate-impact liability imperils the effectiveness of civil rights laws by mandating, rather than proscribing, discrimination.”

This leaves employers in choppy waters. The Executive Order directs federal agencies to shift their enforcement priorities and resources away from disparate impact claims, revokes existing Presidential approvals of regulations, and sets in motion further agency rulemaking and guidance to cease the federal government’s actions supporting disparate impact liability. However, the Executive Order does not change Section 703(k), or any of the case law interpreting and applying disparate impact theories of liability over the past five and a half decades, so employers still must contend with disparate impact claims brought by the private plaintiffs’ bar.  

Via the April 23, 2025 Order, the administration has communicated its intent to move away from disparate-impact liability, which includes:

  • Revoking regulations and other guidance that support disparate-impact liability;
  • Deprioritizing enforcement based on disparate-impact liability, including the enforcement of previously entered consent decrees and other agreements;
  • Evaluating whether state laws that incorporate disparate-impact liability theories may be preempted by federal authority; and
  • Issuing guidance to employers about promoting equal access to opportunity without regard to whether an applicant has a college education.

Section 2 of the Order provides the fundamental policy of the administration as it unambiguously states, “it is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.”

Section 3 of the Order revokes prior Presidential approvals of regulations applicable to programs and activities receiving federal financial assistance under Title VI, as enforced by the Department of Justice.

Section 4 of the Order directs federal agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability,” with explicit reference to Title VII employment discrimination provisions and Title VI regulations.

Sections 5, 6, and 7 of the Order together instruct federal agencies to identify and evaluate existing disparate impact frameworks across the federal government, including regulations, guidance, rules, or orders that impose disparate impact liability, then plan for their amendment or repeal.

Section 6 has particular relevance to employers, as it requires the Attorney General and EEOC Chair to assess “all pending investigations, civil suits, or positions taken in ongoing matters . . . that rely on a theory of disparate-impact liability,” And it requires all agencies to “evaluate existing consent judgments and permanent injunctions” premised on the theory. Once identified, agencies are to take “appropriate action” consistent with the Order’s policy. Given the broad language in the Order, “appropriate action” could include dismissing existing litigation in whole or in part, withdrawing amicus briefs, curtailing or ending pending investigations, modifying or halting conciliation agreements and consent decrees, and scaling back other enforcement activity.

The mandate to assess pending investigations and litigation extends to the Department of Housing and Urban Development, Consumer Financial Protection Bureau, Federal Trade Commission, and other agencies enforcing laws such as the Equal Credit Opportunity Act and Fair Housing Act.

Section 7 directs the Attorney General to determine whether federal authorities preempt state laws imposing disparate impact liability and to take “appropriate measures” in response to any identified “constitutional infirmities.”  Section 7 also instructs the Attorney General and EEOC Chair to jointly formulate guidance to employers about promoting equal access to opportunity without regard to whether an applicant has a college education.

Implications for Employers Using Selection Procedures, Including Artificial Intelligence

Section 1 of the Order asserts that disparate-impact liability has “hindered businesses from making hiring and other employment decisions based on merit and skill, their needs, or the needs of their customers because of the specter that such a process might lead to disparate outcomes, and thus disparate-impact lawsuits.” This assertion has particular relevance for employers using selection procedures or other processes that use artificial intelligence in their hiring and employment processes. The EEOC’s previous technical assistance on AI systems, issued on May 18, 2023, which has subsequently been revoked, asserted that existing law covered AI systems that produced disparate outcomes.

The Order creates a notable shift in this enforcement landscape, because it makes clear that the federal government will no longer prioritize investigations or enforcement actions based solely on statistical disparities in hiring outcomes. For employers using algorithmic decision-making systems, whether or not these systems are being deployed to make or assist in employment decisions, this policy shift means that the federal government is unlikely to pursue investigations or litigation alleging that the use of algorithms, including AI, has resulted in unlawful discrimination.

However, this backing away from enforcement at the federal level does not does not relieve employers of their obligations. First, disparate impact liability was codified into law by Congress in 1991, and private litigants retain the right to bring disparate impact claims under Title VII regardless of the federal government’s own enforcement priorities. It remains to be seen if the private plaintiff’s bar will pick up this challenge. The EEOC has long touted that, at least as far as disparate impact in hiring is concerned, it is “uniquely positioned to combat systemic hiring discrimination” based on its access to employer applicant and hiring data.  Complex “systemic” discrimination cases present a challenge for private lawyers given the high costs of necessary experts and the inability to track down potential claimants.  Time will tell if private litigants will fill any void created by the EO.

Additionally, several states and local units of government have enacted their own fair employment laws that recognize disparate impact liability, and these laws currently remain unaffected by federal enforcement decisions. For example, disparate impact components are present in local laws like New York City’s Human Rights Law and a new proposed rule from New Jersey’s Division on Human Rights.  States like Colorado and Illinois have already passed new laws intended to address unlawful bias arising out of an employer’s use of AI for employment decisions, and many other state legislatures are considering new laws. Furthermore, multiple groups from industry and civil society have advanced standards and practices for evaluating AI systems that address potential disparate impacts on the basis of sex, race, and other protected characteristics. As noted above, however, this administration will be examining potential preemption of these laws and rules. 

The Shifting Compliance Landscape

The divergence between federal enforcement priorities and existing statutory provisions and case law, and state and local laws, creates significant compliance challenges for employers. Employers and service providers should not interpret the April 23 Order as eliminating all exposure to disparate impact liability claims. Rather, employers and service providers should understand the Order as reflecting a change in federal enforcement priorities and be mindful that it may not extend to state and local laws and enforcement, or private litigants pending additional action, including efforts to “preempt” state or local laws.

Employers using AI-based tools or other selection procedures should continue to closely monitor developments at the federal and state levels, as well as private litigation trends and evolving global action. Employers should also understand how these efforts interact within the broader legal landscape, including but not limited to the Administration’s positions regarding diversity, equity, and inclusion and “merit based” employment practices, in which these federal priority shifts are occurring.

Seyfarth Shaw will continue to monitor these developments and provide updates as they occur. For more information on how these changes may affect your workplace policies and compliance obligations, please contact any of the authors or your Seyfarth attorney.

Seyfarth Shaw LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from their professional advisers.

By: Ridhima Bhalla, Andrew L. Scroggins, and Christopher J. DeGroff

In a March 5, 2025 press release, Andrea Lucas, the Acting Chair of the U.S. Equal Employment Opportunity Commission (EEOC), emphasized the agency’s plans to prioritize holding universities and colleges accountable to prevent the creation of hostile work environments for Jewish employees.

This emphasis follows other directives from the new administration. On February 3, 2025, President Trump issued Executive Order 14188: Additional Measures to Combat Anti-Semitism. Following this directive, the Department of Justice established a Task Force to Combat Anti-Semitism on February 3, 2025, and on March 5, 2025, disclosed that it is investigating the University of California for potential Title VII violations related to alleged antisemitism on campus. Acting Chair Lucas weighed in on the same day, affirming that “the EEOC is committed to partnering with the Department of Justice to stamp out the scourge of anti-Semitism on campus workplaces.”

The latest press release does not represent a dramatic shift in stance at the EEOC, as evidenced by earlier statements and resources cited the release regarding antisemitism in the workplace. In 2023, the EEOC published a fact sheet outlining steps workers should take if they encounter antisemitism in the workplace. The following year, the Commission issued another fact sheet addressing both anti-Muslim and antisemitic discrimination. Additionally, in May 2021, the EEOC adopted a resolution denouncing violence and harassment against Jewish employees.  However, this very public “double down” on the issue should signal to all employers – not just those in the academic community – that the EEOC will be on the lookout for enforcement opportunities to emphasize its commitment in this area.

Employer Implications

The Acting Chair has encouraged individuals who believe they have experienced discrimination or antisemitism at work to file a charge. Although the EEOC can launch investigations without an employee specifically complaining about a particular employer (using a “Commissioner’s Charge,”) the agency relies primarily on employee claims to source its enforcement actions. With this increased exposure and emphasis, we anticipate a rise in charges filed on this basis. Employers are advised to familiarize themselves with the resources provided by the EEOC to understand how the EEOC views employer obligations.

Employers should consider conducting a privileged review of their policies and practices to ensure they include state-of-the-art provisions against religious discrimination. Additionally, implementing regular training sessions is a proactive measure that can significantly reduce the likelihood of legal claims.

By: Taylor Iaculla, Andrew Scroggins, and Christopher DeGroff

Seyfarth Synopsis: In a dramatic policy shift, the U.S. Equal Employment Opportunity Commission (“EEOC”) under Acting Chair Andrea Lucas announced, in a press release, a new focus on unlawful employment practices that favor non-American workers over American workers. The effort purports to address and rectify alleged discriminatory hiring preferences that contribute to illegal immigration, the abuse of legal immigration programs, and adverse impacts on American workers.

Deviating from the EEOC’s prior staunch advocacy for the rights of immigrant workers and previous strategic enforcement priorities—described in Seyfarth’s Shaw’s 2025 Edition of its EEOC-Initiated Litigation Report—the EEOC “vowed” to protect American workers from national origin bias. The policy shift purports to deter illegal migration and reduce the supposed misuse of legal immigration programs by targeting employers who prefer non-American workers over American citizens.

On the day she was confirmed, Acting Chair Andrea Lucas announced that she was prioritizing “protecting American workers from anti-American national origin discrimination”. In a press release on February 19, 2025, Lucas stressed that employers have a myriad of “excuses” to justify their preference for non-American workers including:

  • an effort to reduce labor costs by paying illegal immigrants “under the table” and skirting wage requirements affecting visa holders;
  • to manipulate vulnerable foreign workers they may perceive as more easily exploitable due to their limited knowledge of labor rights and protections;
  • utilizing immigrant workers due to customer or client preferences; and
  • holding biased productivity perceptions on the unfounded belief that foreign workers are more productive or possess better work ethics than American workers.

Acting Chair Lucas emphasized that such practices are not only legally impermissible, but that the EEOC would “rigorously enforce the law to protect American workers from national origin discrimination.”

An example of the EEOC’s shift in priorities is the recent settlement with LeoPalace Guam Corporation. In a consent decree approved by the court on February 18, 2025, the company agreed to pay just over $1.4 million to resolve allegations that it provided less favorable wages, benefits, and conditions of employment to non-Japanese employees, including American nationals, as compared to their Japanese counterparts. In a press release announcing the settlement, Acting Chair Lucas remarked that “federal anti-discrimination laws ensure equal employment opportunity for jobs performed by all workers regardless of national origin” and “unlawful national origin discrimination includes discrimination against American workers in favor of foreign workers.”

This new policy could be particularly problematic in industries with historically large immigrant workforces, such as agriculture, construction, healthcare, hospitality and food service, and meat packing.  If history is a guide, we can anticipate vigorous enforcement to back up this new direction, including lawsuits highlighting a commitment to the administration’s concerns of “anti-American” employment practices. 

Implications for Employers

The EEOC’s announcement amplifies the Trump administration’s ongoing efforts to alter the legal landscape and reverses the EEOC’s prior, longstanding goal of protecting immigrant workers – a group the EEOC has historically designated as a “vulnerable population.” In light of these changes, employers are encouraged to conduct a privileged audit of their hiring and employment practices along with hiring data to ensure compliance with federal anti-discrimination laws. Special attention should be given to policies that unlawfully favor, or appear to favor, non-American workers.

By: Ridhima Bhalla, Samantha Brooks, Andrew L. Scroggins, and Christopher J. DeGroff

On January 17, 2024, just days before the new presidential term began, the Equal Employment Opportunity Commission published its annual performance report for the preceding Fiscal Year 2024. The Report highlights a year filled with notable monetary recoveries, an overall surge in new discrimination charges filed with the agency, and education and outreach initiatives. Soon after the Report was released, though, the EEOC was rocked by President Donald Trump’s elevation of Commissioner Andrea Lucas to Acting Chair, the removal of Democratic Commissioners Charlotte Burrows and Jocelyn Samuels – causing the agency to lose the quorum necessary to conduct its most serious business, termination of General Counsel Karla Gilbride, and the release of directives that reverse some of the agency’s long-held positions.[i] The Report now becomes a measuring stick to observe how the EEOC’s enforcement efforts do and do not change in response to these forces over the remainder of Fiscal Year 2025 and beyond.  

EEOC Reports Unprecedented Recoveries and Rising Service Demands in FY 2024 

The EEOC recently released its Annual Performance Report for FY 2024. The Report gives the EEOC an opportunity each year to showcase the results of its enforcement of federal anti-discrimination statutes and often is relied upon by the agency to bolster its requests for budget increases.

According to the Report, last year the EEOC secured nearly $700 million in monetary recoveries, benefitting about 21,000 claimants. This is the highest monetary recovery the EEOC has ever achieved. This unprecedented total includes $469.6 million for private sector and state/local government claimants, $190 million for federal workers and applicants, and over $40 million obtained through litigation.  

The Report also highlights that the EEOC saw a significant increase in charge filings: there were 88,531 new charges filed in 2024, a 9.2% rise in filings from the previous fiscal year. What the EEOC touted as an achievement in the Report, however, may now become a burden. While the empty seats at the Commission should not affect how routine charges are processed, other Trump administration announcements, such as a hiring freeze and soliciting voluntary resignations, will almost certainly leave the EEOC with fewer resources to work through this inventory and its pre-existing backlog.  

The Report also calls attention to the EEOC’s litigation of claims that it identified as focus areas in its Strategic Enforcement Plan (“SEP”). For example, the EEOC filed five lawsuits under the Pregnant Workers Fairness Act (PWFA), which took effect in FY 2023 and which the EEOC has identified as an “emerging and developing issue.”  Likewise, the EEOC’s SEP reiterated the agency’s intent to file claims under the Americans with Disabilities Act (ADA), and in FY 2024 such claims represented more than 40% of the merits suits that were filed.

The Report includes multiple ways that the EEOC advanced the rights of LGBTQI+ individuals in FY 2023. Among those flagged by the EEOC: it filed four Title VII lawsuits that involved allegations of sexual orientation-based discrimination, and three that involved discrimination based on gender identity; ran a social media campaign on harassment prevention based on protected characteristics, including gender identity and sexual orientation; and conducted 246 LGBTQI+ outreach events, reaching 27,250 individuals. These efforts are a virtual certainty not to be repeated in the next few years, though. Acting Chair Lucas has announced that “the agency is returning to its mission of protecting women from sexual harassment and sex-based discrimination in the workplace,”  directed the removal  of the “X” gender marker and “Mx.” prefix for filing a charge of discrimination, and removed materials on LGBTQI+ worker protections and artificial intelligence-based discrimination from the Commission’s internal and external websites.

Implications for Employers 

Often, the EEOC’s Annual Report provides a preview of what is to come. In this instance, it is more likely to serve as a time capsule of a different time at the EEOC. Nonetheless, employers should remember that the EEOC will continue to investigate charges filed with it, and to take matters to enforcement where warranted. Employers should continue the blocking and tackling of publishing non-discrimination and anti-harassment policies to their employees and providing training on how to stay in compliance with those laws. In the meantime, we will continue to monitor changes and report on new trends and developments at the agency.

[i] See Rachel See and Andrew Scroggins, Trump Fires EEOC Commissioners, Testing Constitutional Limits on Presidential Power Over Independent Agencies, Workplace Class Action Blog (Jan. 29, 2025), https://www.workplaceclassaction.com/2025/01/trump-fires-eeoc-commissioners-testing-constitutional-limits-on-presidential-power-over-independent-agencies/.

By: Rachel V. See and Andrew L. Scroggins

Seyfarth Synopsis: On the afternoon of Tuesday, January 28, 2025, media reports confirmed that President Trump has fired EEOC Commissioners Charlotte Burrows and Jocelyn Samuels, both Democratic appointees. Samuels confirmed her dismissal via her X (formerly Twitter) account. President Trump’s unprecedented move at the EEOC follows similar action yesterday and today at independent agencies such as the National Labor Relations Board (NLRB) and the Private Civil Liberties Oversight Board (PCLOB). The dismissals at the EEOC will almost certainly be challenged in court. They open the door for President Trump to secure a Republican majority on the EEOC as soon as his nominees are confirmed by the Senate. Alternately, President Trump may choose to leave the EEOC without a quorum, unable to exercise its statutory functions.

President Trump also fired EEOC General Counsel Karla Gilbride, just as he fired NLRB General Counsel Jennifer Abruzzo earlier this week. President Trump’s dismissal of the General Counsels of the EEOC and NLRB follows President Biden’s dismissal of both EEOC GC Sharon Gustafson and NLRB GC Peter Robb at the start of his term.

In a statement released by her lawyers, Commissioner Burrows said that she “will explore all legal options available to me”. In her statement on X (formerly Twitter), Commissioner Samuels said, “Removing me from my position before the expiration of my Congressionally directed term is unprecedented, violates the law, and represents a fundamental misunderstanding of the nature of the EEOC as an independent agency…I am considering my legal options”.

The EEOC was created by Title VII of the Civil Rights Act of 1964, which specifies that EEOC Commissioners serve for fixed 5-year terms. There is no provision in Title VII that allows the President to remove a Commissioner “for cause”. With President Trump’s firing of Commissioners Burrows and Samuels, the EEOC currently lacks a quorum because it only has two members – the Republican Acting Chair, Andrea Lucas, and the Democratic Commissioner, Kalpana Kotagal. Title VII requires three members of the five-member Commission to form a quorum; without a quorum, the EEOC is unable to act in furtherance of its statutory duties.

1. Without a Quorum, EEOC Litigation Is Curtailed but Not Halted

 First, employers currently involved in EEOC litigation or investigations should remember that these efforts are conducted by EEOC career staff, who will continue the day-to-day activity of the agency unless and until further action is taken. We anticipate that the EEOC’s lack of a quorum will not affect its routine investigations or pending litigation, at least in the near term.

With President Trump’s firing of EEOC General Counsel Karla Gilbride, the EEOC’s Deputy General Counsel, a career EEOC official, becomes the Acting General Counsel pursuant to the Federal Vacancies Reform Act. He will be able to exercise all of the authority of the General Counsel to continue conducting and developing litigation.

The EEOC General Counsel is responsible for conducting EEOC litigation,[1] but the Commission itself must authorize the initiation of new lawsuits. Nonetheless, not all lawsuits must get the Commission’s explicit vote of approval. That is because the Commission has delegated some of its authority pursuant to a formal document last modified on January 13, 2021, under a Republican majority. The current litigation delegation anticipated that the Commission might lack a quorum and specifically addressed how to proceed in that scenario.

Under this delegation framework, in the absence of a quorum, the General Counsel may not initiate several critical categories of cases. These categories include all recommendations for the Commission to file an amicus brief, all cases alleging systemic discrimination or “pattern-or-practice” discrimination, cases requiring major expenditure of agency resources, cases taking positions contrary to Circuit precedent, and cases presenting novel or unsettled legal issues likely to generate public controversy. The General Counsel has authority to file cases that do not fall into these categories.

The practical effect is straightforward: without a quorum, while the General Counsel has authority to initiate routine EEOC litigation without Commission approval, filing the most significant and far-reaching cases require a Commission vote. Without a quorum, the Commission cannot vote to approve the filing of those cases. However, employers should note that this limitation applies only to the actual filing of federal court complaints. The General Counsel and EEOC staff retain full authority to investigate potential violations and develop these cases right up until the point when Commission approval would be needed to commence litigation.

2. Without a Quorum, the EEOC Cannot Initiate Rulemaking or Revoke or Modify Formal Guidance

The absence of a quorum significantly constrains the EEOC’s ability to modify its formal positions and regulatory framework. Any issuance, modification, or revocation of formal guidance requires Commission approval, as does the initiation of notice-and-comment rulemaking under the Administrative Procedures Act. This limitation’s practical impact is already visible: shortly after President Trump appointed Andrea Lucas as Acting Chair, the EEOC’s website was updated to prominently note that its “Enforcement Guidance on Harassment in the Workplace” was “approved by the Commission on April 29, 2024, by a 3-2 vote” and that “any modification must be approved by a majority vote of the Commission.” Without a quorum, this guidance – and all other formal EEOC guidance – remains effectively frozen in place.

The same constraint applies to the EEOC’s regulatory initiatives. Without a quorum, the EEOC cannot commence notice-and-comment rulemaking, so, for instance, it could not begin the process to revise its interpretive guidance regarding affirmative action plans. Similarly, the EEOC would be unable to initiate proceedings under the Paperwork Reduction Act to modify or revoke its EEO-1 data collection requirement, which currently extends through 2026.

However, should President Trump choose to nominate additional Commissioners – and should they be confirmed by the Senate – a new Republican majority would restore the EEOC’s quorum and its ability to drive forward with the Trump administration’s priorities.

3. Acting Chair Lucas Can Issue or Revoke Technical Assistance On Her Own Authority

A critical distinction exists between formal guidance and EEOC “technical assistance.” While formal guidance requires Commission approval, technical assistance documents fall solely under the Chair’s authority and can be issued or revoked without a Commission vote.

The practical impact of this distinction became immediately apparent on January 27, 2025, when numerous EEOC technical assistance documents quietly disappeared from the agency’s website. This swift action under Acting Chair Lucas’s authority resulted in the removal of several significant documents from the EEOC’s website: all technical assistance regarding artificial intelligence and its intersection with the ADA and Title VII, the agency’s report on technology sector discrimination, its interpretations applying Bostock to LGBTQ workers, and its 2015 fact sheet explaining the EEOC’s position regarding a transgender employee’s access to restrooms.

Upon being appointed by President Trump as Acting Chair, Andrea Lucas said, “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.”

On the evening of January 28, the EEOC issued a press release titled, “Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace,” in which Acting Chair Lucas confirmed her removal of certain “materials promoting gender ideology” on the Commission’s websites and elsewhere. Her press release further acknowledged that, based on her existing authority, the Acting Chair could not unilaterally revoke documents such as the EEOC’s Enforcement Guidance on Harassment in the Workplace, the EEOC’s Strategic Plan for 2022-2026, or the EEOC’s  Strategic Enforcement Plan Fiscal Years 2024-2028.

However, using her authority as Acting Chair, Lucas can still issue new technical assistance documents that align with these priorities without requiring a quorum or Commission approval.

4. EEOC Firings Are Part of a Coordinated Strategy to Assert Presidential Control Over Independent Agencies

President Trump’s firing of EEOC Commissioners appears to be part of a broader strategy to assert expansive presidential removal authority over multi-member bipartisan independent agencies, each with similar statutory structures to the EEOC.

Today, on January 28, 2025, there have been confirmed media reports that President Trump fired Democrat Gwynne Wilcox at the National Labor Relations Board (as well as firing NLRB General Counsel Jennifer Abruzzo). President Trump’s firing of Member Wilcox also leaves the NLRB without a quorum, and leaves the 5-member NLRB with a single Republican and a single Democrat.

Last week, the media reported that President Trump had asked each of the three Democratic members of the Privacy and Civil Liberties Oversight Board (PCLOB) to resign. Media reports on January 28, 2025 confirmed that President Trump had fired all three of these PCLOB members.

The statutory structure of the NLRB and the PCLOB closely parallel that of the EEOC: all are multi-member agencies whose members are nominated by the president and confirmed by the Senate to fixed terms, and whose statutes require bipartisan composition.

Critically, like Title VII which created the EEOC, the PCLOB’s governing statute contains no explicit “for cause” removal protections for its members. We note that the statutory text of the NLRA provides, “Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” There is no parallel language in Title VII or the statute that created the PCLOB. According to a media report published on the evening of January 28, 2025, President Trump’s letter to Member Willcox asserted that the law “does not operate as a restriction on my ability to remove Board members.”

5. The Constitutional Stakes: Presidential Power and the “Unitary Executive” Versus Independent Agencies

President Trump’s coordinated removal of officials across multiple independent agencies appears designed to test and potentially expand presidential removal power under the “unitary executive” theory. This constitutional theory holds that Article II of the Constitution requires the President maintain direct control over all executive branch officials, including through unrestricted removal authority, notwithstanding Congress’ attempt to pass laws to the contrary.

The Supreme Court’s 2020 decision in Seila Law v. CFPB, 140 S. Ct. 2183 (2020), expanded this theory by invalidating removal protections for single-director agencies, when the Supreme Court held that Congress’s creation of an independent agency led by a single Director who could be removed only for cause violated Article II’s separation of powers. Applying this holding, Circuit Courts of Appeals upheld President Biden’s firing of the NLRB GC, ruling that the presence of a statutory term limit alone, without explicit removal protection, does not restrict the President’s removal power. See Exela Enter. Sols. v. NLRB, 32 F.4th 436 (5th Cir. 2022), Aakash, Inc. v. NLRB, 58 F.4th 1099 (9th Cir. 2023) and Frank Schaub Foods v. NLRB, 84 F.4th 962 (D.C. Cir. 2023).

However, multi-member commissions like the EEOC have historically been protected by the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), which upheld Congress’s power to create independent boards and commissions whose members the President could not remove at will.  Humphrey’s holding upheld the structure of the Federal Trade Commission, and relied on the fact that in addition to being a multi-member board, the FTC’s mission included broader “quasi-legislative” and “quasi-judicial” functions. Certainly, the EEOC possesses similar characteristics – its rulemaking activities can be seen as “quasi-legislative” and the EEOC issues quasi-judicial appellate opinions when it decides EEO claims brought by federal employees.

President Trump’s attempted firing of EEOC, NLRB, and PCLOB members may eventually result in litigation that invites the Supreme Court to revisit (and overturn) Humphrey’s. We already know that there are at least two Justices on the Supreme Court poised to overturn Humphrey’s. In his concurrence in Seila Law, Justice Thomas wrote a concurrence that explicitly rejected the entire premise of Humphrey’s distinction between “quasi-legislative” and “quasi-judicial” functions, arguing this was an artificial distinction unsupported by constitutional text or history, and that Humphrey’s  should be overruled. Justice Gorsuch joined in Justice Thomas’ concurrence.

While Justices Roberts, Alito, and Kavanaugh did not join in this concurrence, subsequently, they have joined opinions enthusiastically supporting the “unitary executive” theory as applied to President Trump’s actions. See e.g., Trump v. United States, 603 U.S. ___ (2024) (granting broad Presidential immunity for “official acts”).

Will the current Supreme Court overturn or distinguish Humphrey’s as applied to President Trump’s firing of EEOC Commissioners Charlotte Burrows and Jocelyn Samuels? Employers should expect significant litigation over the validity of these removals, creating a period of uncertainty until the courts resolve the issue.

6. Implications for Employers

Amidst all of this uncertainty, employers should remember that day-to-day EEOC litigation and investigations are conducted by career staff, who will continue that routine activity unless and until further action is taken. We will continue to monitor how President Trump’s moves to decrease the size of the federal workforce and to eliminate federal programs impact the EEOC and its mission.

For more information about the EEOC, its composition and litigation activity, please see Seyfarth Shaw’s EEOC-Initiated Litigation – 2025 Edition or contact your Seyfarth attorney or the authors of this post.

[1] Title VII provides an exception for EEOC litigation before the Supreme Court, which is handled by the Attorney General.

By: Ala Salameh, Andrew Scroggins, and Christopher DeGroff

Seyfarth Synopsis: On January 2, 2025, the EEOC released a report underscoring that a gender pay gap among federal employees has an age component as well; the gap is larger for those age 40 and over relative to those under age 40. In light of these findings, the EEOC recommends that federal employers identify and address gender-based barriers to equal pay and implement initiatives to eliminate pay inequities. While the report specifically examines federal entities, employers across all industries and sectors should take note amid the surge in state pay equity and transparency requirements. Critically, the EEOC’s focus on federal employer pay gaps may signal related enforcement efforts for private employers.

The U.S. Equal Employment Opportunity Commission (“EEOC”) is charged with enforcing laws prohibiting discrimination in employment, including gender-based discrimination and discrimination against those age 40 and over. Recently, the EEOC leveraged data on over two million federal employees to look more closely at gender pay gaps, including in particular (1) the respective gender pay gaps across different age groups; and (2) how other factors such as race, education, age, occupation, and federal agency related to those pay disparities.

The EEOC’s analysis is based on data from fiscal year 2021. During that period, older workers were employed by the federal government at over twice the rate of younger workers (30.9% of the federal workforce was under age 40; and 69.1% was over age 40).[1] The populations of women and men in the dataset were similar in ways that aided the analysis. For example, the ratio of women to men was nearly identical in both the younger and older cohorts. In the younger cohort, the average age of women and men was identical; in the older cohort, the average age of women and men differed by only a few months. There are a number of key takeaways from the EEOC’s report:

  1. The gender pay gap exists among all age groups but was meaningfully larger among employees over age 40. When looking at median wages across genders and ages, women under 40 were paid an average of $2,608 less than men annually. The gap was more than two-and-a-half times greater for women over 40, who were paid an average of $6,927 less than men annually.
  2. Skills and backgrounds do not explain the difference. In its study, the EEOC controlled for “human capital” factors and “personal characteristics” such as education, years of federal work experience, race, disability status, age, and veteran status. Controlling for these factors did not explain the pay gap. To the contrary, considering these additional factors revealed an even larger gender pay gap than suggested by median pay figures. Said another way, women who possessed the same attributes that for men “generally would result in more pay” still were paid less. Controlling for these factors, the researchers concluded that women over 40 were paid $8,228 less than male workers in the same age group.
  3. The factor most associated with narrowing the gap for workers under 40 was educational attainment. The study showed that educational attainment was correlated with higher pay. In both age groups, women were more likely to have a master’s, professional, or doctoral degree than their male counterparts. The difference was even more pronounced among women under 40, who presented higher educational attainment relative to their senior counterparts. For this younger group, educational attainment accounted for a decreased the gender pay gap of $1,665 annually. 
  4. The factor most associated with narrowing the gap for workers 40 and over was veteran status. Women over age 40 who identified as veterans  were able to close the gender pay gap to a degree, reducing the shortfall by $1,314 annually. Veteran status is not a panacea, however, as “[o]n the whole, veterans were paid slightly less than non-veterans, and women were less likely to be veterans than men.”

Implications for Employers

Overall, the EEOC’s report reflects that the gender pay gap remains among men and women working for the federal. Though the gap has narrowed for women workers under 40, it still amounts to thousands of dollars less income each year and it cannot be explained by controlling for factors such as education and experience.

To address this ongoing disparity, the Commission recommends that federal agencies identify and address barriers, especially for women over age 40, to ensure they have equal access to higher paying occupations and roles. The EEOC’s “heal thyself” message to the federal government could also serve as an early warning to private employers that broader enforcement efforts may be on the way.  This sort of “intersectional discrimination,” meaning the overlap between two protected classes, has historically been a hot topic for the agency.  Employers should be mindful of this issue. 

And of course, employers also need to bear in mind that federal agencies do not, alone, carry the responsibility of ensuring equal pay. States and localities continue implementing pay transparency, reporting, and equity laws as described in Seyfarth’s 50 State Equal Pay Reference Guide; and in recent analyses on developments in Massachusetts, Illinois, New Jersey, and Minnesota.

If you have questions about pay equity laws and obligations in your area, please connect with the authors of this article and/or your Seyfarth attorney.

[1] The Impact of Age on the Gender Pay Gap in the Federal Sector, The Equal Employment Opportunity Commission (Jan 2, 2025), https://www.eeoc.gov/sites/default/files/2025-01/Gender_Pay_Gap_By_Age_Report_final_508.pdf.