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.

By: Taylor Iaculla, Yoon-Woo Nam, and Andrew L. Scroggins

Seyfarth Synopsis: On December 19, 2024, the Equal Employment Opportunity Commission (“EEOC”) published a new fact sheet titled “Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws.” The fact sheet describes some of the technologies employees may be fitted with, the types of information that may be tracked –from smart watches that can monitor physical activity, to GPS devices that track location, to devices that detect operator fatigue – and how some uses of that information may violate EEO laws. It also provides the latest illustration of the EEOC’s heightened focus on technological developments implicating employment laws and puts employers on notice that technological tools must be assessed to ensure their use does not run afoul of federal employment laws.

Use of Wearable Technologies in the Workplace

In its fact sheet, the EEOC addresses the increasingly common workplace use of “wearables,” which it describes as “digital devices embedded with sensors and worn on the body” that can track “bodily movements, collect biometric information, and/or track location.” In addition to smart watches or rings that track the activities of those who wear them, the EEOC also called out environmental or proximity sensors that warn wearers of nearby hazards; smart glasses and smart helmets that can measure electrical activity of the brain or detect emotions; exoskeletons and other aids that provide physical support and reduce fatigue; and GPS devices that track location.

Although these devices may provide potential benefits, such as helping workers to avoid hazardous conditions for themselves and others, the EEOC warns that use of the devices may possibly violate federal employment laws.

Collecting Employees’ Health Data

Some of the scenarios proffered by the EEOC describe behavior that is problematic on its face. For example, the EEOC describes an employer who tracks an off duty employee, notes that they have visited a dialysis center, then inquires further in a way that reveals family medical history and genetic information in violation of the law. While this strikes us as an uncommon scenario, employers should take note of the EEOC’s broader point: Wearables may collect certain information about an employee’s physical or mental conditions or perform diagnostic testing in a manner the EEOC finds similar to conducting “medical examinations” or making “disability-related inquiries” under the Americans with Disabilities Act (“ADA”). Generally, permissible “examinations” and “inquiries” must be “job related and consistent with business necessity.” These requires fact-specific, individualized assessments to determine whether an employee is a direct threat – a standard that can be met only in “relatively limited” circumstances, according to the EEOC.

Another ADA trap for employers: If the data collected from wearables is deemed protected under the ADA, then it must be kept in separate medical files and treated as confidential.

Using Collected Information in Employment Decisions

Employers may be held liable for making employment decisions based on information collected through wearable technologies as well.

The EEOC warns employers not to use the devices or data in a discriminatory manner. For instance, an employer may not require the use of wearables only for members of a protected class, or use wearables to surveil or scrutinize those who have engaged in protected EEO activity. Similarly, relying on data from wearables that provide less accurate results for individuals with darker complexions when making employment decisions could violate Title VII of the Civil Rights Act of 1964 (“Title VII”). As a whole, the fact sheet cautions employers against using data in a way that would identify or implicate an employee’s protected characteristic when making employment decisions.

Accommodation Requests

The EEOC also reminds employers of their obligations under Title VII, the ADA, and the Pregnant Workers Fairness Act (“PWFA”), which may require them to make exceptions to their mandatory wearables policy. It expects that any mandatory wearables policy will permit reasonable accommodations. For example, an employer may need to exempt employees from wearing such devices, or provide a reasonable alternative, due to pregnancy, disability, or an employee’s religious beliefs.

Implications for Employers

In sum, the EEOC recommends that employers using or mandating wearable technologies in the workplace remain cognizant of (1) what data is collected; (2) the efficacy of the data; (3) proper storage of any data collected; and (4) the manner in which the data is used, if at all, to make employment decisions.

The fact sheet serves as yet another reminder to employers that existing law applies to new and advancing technologies. It is not enough that the devices have a legitimate purpose on the jobsite, even to preserve individual or overall workplace safety. Employers are responsible for any adverse employment decisions taken based on data collected by wearables and must likewise ensure any data collected is properly stored and maintained. In light of this, employers should look carefully at any new tools that are introduced to the workplace to understand how they work, what information is gathered, how the information is used and stored, and how the information may be misused or misconstrued, then take action to stay within the bounds of EEO laws.

This latest publication also foreshadows the EEOC’s enforcement priorities, showing once again that the EEOC will scrutinize the technological tools that employers increasingly rely on.

By: Adam Rongo, Andrew Scroggins, and Christopher DeGroff

Seyfarth Synopsis: On November 15, 2024, the EEOC released its Agency Financial Report (“AFR”) for Fiscal Year 2024. The AFR is intended to provide a description of the Agency’s financial management and offer high-level performance information. This year’s edition marks the sixth version of the publication, following the release of the inaugural AFR in FY 2019. In years past, the EEOC has used the AFR as a forum to tout its successes in enforcement efforts. In a departure, this year’s AFR includes little information of that type, focusing on how EEOC measures its performance but devoting little space to explaining how it performed in FY 2024.

The EEOC Did Not Include Performance Highlights in its Report

In an interesting change from the last time we issued an update on the EEOC Agency Financial Report, the EEOC did not include a comprehensive list of performance highlights in its report. As an example, the Agency did not include details about its monetary recoveries beyond narrowly discussing its enforcement efforts under the Pregnant Workers Fairness Act (“PWFA”). Instead, the agency highlighted its strategic goals and noted that it met or exceeded 12 of its 15 targets outlined in its Strategic Plan, and partially met the remaining three. However, the agency did not go into detail on what those measures were.

Pregnant Workers Fairness Act

The EEOC appears to be prioritizing its enforcement actions under the PWFA. Specifically, the report focuses on notable investigations the EEOC conducted while enforcing the Act. For example, the EEOC described one charge investigation where it reportedly found evidence that an employer violated the PWFA because it failed to provide a reasonable accommodation and forced an employee to take unpaid leave under the Family and Medical Leave Act (“FMLA”) because of her pregnancy. Following its finding, the charge resolved for over $130,000.00 for the charging party. The resolution also included injunctive relief such as the charging party’s leave being restored. The employer was also required to revise its policy for pregnancy and accommodations and provide annual training. 

The report also highlighted another charge investigation that was resolved for over $180,000.00 in monetary relief to a charging party. The charge alleged that the employer had failed to post notices describing the applicable provisions of the PWFA, and that the charging party’s pregnancy-related medical condition was not accommodated and her employment was terminated. In addition to providing monetary relief, resolution of the charge also included an agreement that the employer provide training for supervisory and non-supervisory employees on the federal laws that prohibit employment discrimination based on pregnancy.

The EEOC closed out this section of the report by highlighting that it filed five PWFA lawsuits in 2024. Those lawsuits were filed in Kentucky, Oklahoma, Alabama, Maryland, and Florida. The report indicates that the EEOC is likely to continue to focus on training employers about the PWFA and also continue its aggressive enforcement efforts under the Act. Even with a new administration, we expect the EEOC will make good on this promise, as President Trump’s expected pick for the EEOC Chair position, Andrea Lucas, has signaled her support of the PWFA (although she has questioned the propriety of some EEOC rulemaking under the statute).

Other Key Developments and Initiatives

In addition to its enforcement efforts, the EEOC also highlighted that going into 2025 it plans to continue to update “decade-old public facing portals,” noting its creation of an E-File for attorneys as a highlight of this effort. The EEOC also stated that it is trying to increase access to communities that are not proficient in English. To the extent the EEOC is able to succeed in these efforts, we could see an increase in charges filed with the EEOC.

Implications for Employers

The EEOC continues to give heightened focus to the PWFA in many facets of its communications. That same focus is likely to continue in litigation efforts as well, including aggressive charge enforcement and possible litigation as we move into 2025. Employers should accordingly check their EEO policies to be sure that they comply with the PWFA, and ensure that those policies are posted and available to all employees.

We will continue to monitor trends and developments in the EEOC’s mission, including the types of cases that are filed and how the agency chooses to fight those lawsuits in court. As we do every year, we look forward to providing you an in-depth look at those trends and developments in the months to come.

Authors: Christopher J. DeGroff, Andrew L. Scroggins, Samantha Brooks, James P. Nasiri and Ridhima Bhalla

Seyfarth Synopsis: Following a handful of sluggish years in terms of EEOC litigation activity, the Commission returned to form by filing 144 merit lawsuits in Fiscal Year 2023. Given that the EEOC finally secured its Democratic majority and had a notably active FY 2023, many expected the Commission to continue this momentum into FY 2024. However, the exact opposite happened—at the time of publication, the EEOC filed only 96 merit lawsuits. This represents not only a filing decline of about 35% compared to FY 2023, but also one of the lowest numbers of EEOC-initiated merit lawsuits in nearly three decades. While the EEOC had a surprisingly quiet year on the litigation front, a close analysis of its FY 2024 filings can help employers understand the Commission’s priority areas and understand what to expect going forward.

In the years following the start of the COVID-19 pandemic, the EEOC scaled down its litigation efforts by filing far fewer lawsuits than it had in years past. For example, our prior EEOC year-end reports documented 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).These numbers stood in stark contrast to the EEOC’s litigation activity under the Obama Administration, where the Commission filed as many as 300 merit lawsuits in certain years.

As the EEOC transitioned into FY 2023, the Commission appeared to have the necessary leadership and resources in place to increase its litigation activity to these Obama-era levels. The EEOC’s national leadership structure of five Commissioners no longer had a Republican majority, and the Republican General Counsel had been fired. The EEOC also received a sizable budget increase. This situation predictably led to more litigation activity, as the EEOC filed 144 merit lawsuits in FY 2023, which represented a five-year high for the Commission. In addition, in the final month of FY 2023, the U.S. Senate confirmed President Biden’s appointee for EEOC Commissioner (Kalpana Kotagal), giving Democratic appointees majority control of the Commission for the first time in many years. Then just weeks later the Senate confirmed a new General Counsel (Karla Gilbride) to lead litigation efforts.

With this momentum, many expected the EEOC to continue its trajectory into FY 2024 and further increase its filing activity. But the litigation surge appears to have weakened significantly. The EEOC filed just 96 merit lawsuits in FY 2024—back to pandemic levels and among the very lowest number observed in the past three decades. To put this number in context, last year in FY 2023, the EEOC filed 71 lawsuits in September alone. The bottom line is that the Commission exhibited a staggering drop in litigation activity in FY 2024.

Begging the question: why did the EEOC’s litigation activity take such a dramatic downturn in FY 2024? With a Democratic majority and Democratic General Counsel in place at the EEOC, it does not appear that partisan politics obstructed any of the Commission’s litigation goals. One potential factor could relate to the EEOC’s resources. The Commission requested a budget increase of more than $26 million in FY 2024, but ultimately, Congress only approved the same amount of funding the EEOC received in FY 2023. A 5.2% pay raise for employees combined with increased operational costs at the Commission cut into that amount, and just last month, the EEOC was faced with a potential one-day furlough to address its limited funding. The EEOC was able to avoid this furlough, but budget concerns are surely top-of-mind for EEOC leadership. Added to the mix: this year’s EEOC was saddled with a cumbersome inventory from the previous year’s filing surge, and aging cases from years before that. Ultimately, the EEOC approached FY 2024 with more cases but the same resources.  

FY 2024 Cases Filed By Month

At the end of every EEOC Fiscal Year, our team at Seyfarth analyzes each EEOC filing in order to identify key trends and provide our one-of-a-kind analysis. Beginning with the timing of the EEOC’s filings, the line graph below displays the number of EEOC lawsuits filed per-month from FY 2021 through FY 2024. As is typical, the EEOC started out FY 2024 at a slow pace, filing only five lawsuits between October 2023 and January 2024. However, unlike prior years, the Commission’s filing activity did not increase as the year progressed. The EEOC filed just three lawsuits in each of March and June, which represents a four-year low in each respective month. The Commission’s litigation activity typically sees a dramatic spike in September, but this FY, the EEOC filed only 56 lawsuits in September (compared to 71 September filings in FY 2023, 46 September filings in FY 2022, and 59 September filings in FY 2021). Additionally, while the Commission did hit a four-year high in terms of its 19 filings in May, almost all of these cases (14 of 19) concerned the enforcement of EEO-1 Report requirements (see below for a more detailed discussion of these cases).

FY 2024 Cases Analyzed By EEOC District Office

With the EEOC experiencing such a significant dip in overall lawsuit filings in FY 2024, the expectation may be that all EEOC District Offices saw a decline in filings as well. Surprisingly, a few EEOC Districts actually increased their number of filings in FY 2024 despite overall EEOC filings decreasing by about 35%. The Indianapolis District Office filed 10 lawsuits in FY 2024 (compared to 9 last year), the Atlanta District Office filed 11 lawsuits this year (compared to 7 last year), and the Phoenix District Office also filed 9 lawsuits this year (compared to 8 last year). Conversely, Districts that have traditionally led the pack in filings—such as Chicago, Los Angeles, and New York—saw extreme declines in filings this year, as these Offices filed only 7, 3, and 8 lawsuits, respectively. The West Coast in particular was notably quiet this year, as the Los Angeles and San Francisco combined for just 7 merit filings in FY 2024. The Philadelphia District Office, which led the way last year, saw the largest decline from 22 filings in FY 2023 to just 14 filings in FY 2024.

Analysis of the Types of Lawsuits Filed in FY 2023

In addition to tracking the timing and location of EEOC lawsuit filings, we also analyze the underlying claims asserted in all EEOC-initiated cases. At a high level, despite the drastic dip in overall filings, the EEOC’s FY 2024 filing numbers generally align with prior years. Once again, the vast majority of its lawsuits were filed under Title VII and the Americans with Disabilities Act (“ADA”). While the Age Discrimination in Employment Act (“ADEA”) is typically the third-most common statute cited in EEOC cases, the Commission lodged only seven ADEA filings in FY 2024.

Equal Pay Act (“EPA”) claims are typically not a common basis for EEOC lawsuits, and that trend continued this year as just two were filed. On the other hand, the Commission opted to file its first case in several years alleging violations of the Genetic Information Nondiscrimination Act (“GINA”), which prohibits discrimination based on genetic information in employment and medical coverage. The EEOC also filed a handful of lawsuits this year alleging pregnancy-based claims. Most notably, the EEOC filed its first three lawsuits under the Pregnant Workers Fairness Act (“PWFA”). The PWFA went into effect June 27, 2023, and on April 15, 2024, the EEOC issued its final regulations concerning enforcement of the Act.

Taking a closer look at these numbers, the ADA remained a focus for the EEOC. The Commission filed 42 disability-related lawsuits in FY 2024, which is nearly 40% more than it filed in FY 2022, despite overall filings in FY 2022 totaling just two fewer than this year. While the EEOC’s filings concerned a broad range of disabilities, the Commission built on a trend from the end of the previous year and continued to prioritize hearing-related disabilities. In January 2023, the EEOC published guidance regarding hearing disabilities in the workplace. Since that point, the Commission has filed a total of 16 ADA cases on behalf of hearing impaired employees (nine in FY 2023 and seven in FY 2024).

Another consistent litigation priority for the EEOC is curbing workplace harassment. To that end, in April 2024, the EEOC released its updated Workplace Guidance to Prevent Harassment. This guidance expanded upon prior EEOC materials by addressing harassment in virtual work environments. Additionally, in June 2024, the Commission released anti-harassment guidance specifically targeting employers in the construction industry. The EEOC’s emphasis on halting workplace harassment was reflected by the Commission filing double-digit hostile work environment lawsuits for at least the third straight year.

The EEOC accused several employers of running afoul of anti-harassment laws in non-office work environments. For example, in FY 2024 the EEOC sued:

  • An Arizona manufacturer of human and pet health supplements alleging sex discrimination, sexual harassment, and retaliation (EEOC v. Good Health Manufacturing, Inc., No. 2:24-cv-1679, D. Ariz.);
  • An Illinois hog farm alleging discrimination and harassment on the basis of an employee’s sex and gender identity (EEOC v. Sis-Bro, Inc., No. 3:24-cv-968, S.D. Ill.);
  • A Massachusetts tire dealer alleging a pattern of discrimination and harassment against Hispanic employees (EEOC v. Bob’s Tire Co., Inc., No. 1:24-cv-10077, D. Mass); and
  • Two car dealers—one in Texas and the other in Indiana—alleging sexual harassment against female employees (EEOC v. NICPA Central Auto Group, LLC & Central Austin Motorcars, No. 1:23-cv-01541, W.D. Tex.; EEOC v. Chesterfield Valley Investors, LLC, No. 1:24-cv-00721, S.D. Ind.).

Another interesting takeaway from the EEOC’s FY 2024 filing numbers is that, for the first time in many years, the EEOC used its litigation capabilities to enforce the submission of EEO-1 Reports. By way of background, the EEOC requests annual workforce data from employers with more than 100 employees, with the most common type of report being an EEO-1 Employer Information Report. As the EEOC notes on its website, “[e]mployers meeting the reporting thresholds have a legal obligation to provide the data; it is not voluntary.” In an effort to enforce this requirement, the EEOC filed a whopping 16 lawsuits alleging Title VII violations against covered employers who failed to file adequate EEO-1 Reports. The Commission posted a press release in May touting these EEO-1 Report filings, and emphasizing that “data collection is an important tool” and that Congress authorized the EEOC not only to collective EEO-1 Report data, but also to enforce data reporting compliance in the courtroom. The vast majority of these cases (14 of the 16) were filed in May, and nearly every EEOC District Office filed a lawsuit concerning EEO-1 Reports. The only District Offices that did not file such a case in FY 2024 were Chicago, Memphis, San Francisco, and Washington, DC (which did not file any lawsuits this year).

As a final point regarding the type of claims asserted by the EEOC in FY 2024, the Commission filed only four religion-based cases. This is particularly interesting because, as we noted in our July 2023 post analyzing EEOC charge numbers, EEOC charges alleging religious discrimination increased nearly seven-fold between FY 2021 (2,111 religion-based charges) and FY 2022 (13,814 religion-based charges). The EEOC filed 11 religious discrimination cases last year, including multiple lawsuits brought on behalf of employees terminated for refusing to comply with vaccine mandates on religious grounds. Despite this massive spike in religious discrimination charges, the EEOC filed only four religion-based lawsuits in FY 2024, with just one of these cases involving COVID-19 vaccination. Given that it has been several years since this batch of EEOC charge filings, it seems that the apparent wave of EEOC religion-based, COVID-19 litigation will be left largely to the private plaintiffs’ bar.

Implications For Employers

While the overall takeaway from the EEOC’s FY 2024 is that the Commission saw a substantial decrease in litigation activity, employers should not drop their guard. One of the EEOC’s two Republican Commissioners (Keith Sonderling) left the EEOC last month, thereby solidifying a Democratic majority for the near future. The Commission also requested a budget increase of over $33 million for FY 2025, which if approved would allow the EEOC to enhance its litigation resources, and likely result in increased case filings. Moreover, the EEOC’s activity in FY 2024 demonstrates that employers—particularly those within the Atlanta and Indianapolis regions—should stay tuned to EEOC trends, with a special emphasis on harassment and disability-related filings. Covered employers should also be sure to submit their EEO-1 Reports in a timely fashion, as the Commission has shown that it will resort to litigation to obtain these reports.

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 a surprisingly 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.