What to Expect Now that EEOC Has a Quorum

On October 7, 2025, the U.S. Senate confirmed the nomination of Brittany Panuccio to be a commissioner of the Equal Employment Opportunity Commission (EEOC). When she takes her seat, absent something unusual happening, she will restore the agency’s quorum. Now that the agency is fully empowered, what might employers expect from the agency going forward?¹

By way of background, since late January, the Commission has lacked a quorum. On Inauguration Day, there were four sitting commissioners—three Democratic appointees, and one Republican (Commissioner Andrea Lucas) who was immediately designated acting chair. In late January, however, the White House took the unprecedented step of firing two of the Democratic commissioners, leaving the agency with only two sitting members, and the lack of a working quorum. The agency’s lack of a quorum has limited its ability to make new policy, revisit old policies or voted-upon guidance, or take any significant action that would require the approval of a majority of the Commission. 

Now the Commission will have a quorum, with a two-to-one Republican majority. Based on the priorities of the White House, and the public statements and actions to date of the acting chair, we offer some insight below on what we might expect from a fully empowered Commission once the government shutdown has ended. 

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On her first full day in office, Lucas issued a statement acknowledging her designation as acting chair and laying out her priorities and goals for the agency:

I look forward to restoring evenhanded enforcement of employment civil rights laws for all Americans. In recent years, this agency has remained silent in the face of multiple forms of widespread, overt discrimination. 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.

In her eight months as acting chair, Lucas has used the full range of the agency’s authority even absent a quorum to advance this agenda.

Diversity, Equity, and Inclusion (DEI) Activities. The elimination of so-called “illegal DEI” in the workplace has been a focus of the administration’s domestic agenda. Indeed, Acting Chair Lucas cited it as her first priority and has taken what opportunities she has to act unilaterally as acting chair to move forward on preferred policies. In March 2025, the EEOC, in conjunction with the U.S. Department of Justice (DOJ), issued two “technical assistance” guidance documents “focused on educating the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace.” The guidance stresses that Title VII does not provide any exception for DEI or “diversity interests” in prohibiting discrimination based on race, sex, or other protected category, and a general business interest in diversity or equity is insufficient to support basing any employment decision in whole or in part on a protected characteristic. Both likewise take a very broad view of what may constitute “illegal” DEI in employment actions, ranging from hiring and promotion to compensation, benefits, access to training and other workplace opportunities such as mentorship programs, and employee resource groups (ERGs). While the EEOC is prohibited from promulgating substantive regulations under Title VII, we expect that with the restoration of a quorum, we will see additional guidance on the agency’s view as to what it considers “illegal” DEI activities, and a focus on investigation and enforcement in these areas.

Rights of Religious Employees. We can safely predict that the EEOC will prioritize protection of the rights of religious workers. During the first Trump administration, then-Commissioner Lucas co-chaired a working group that focused on the rights of religious workers, and anti-religious discrimination in the workplace. She also supported the Commission’s revision of its guidance on religious discrimination in the workplace, which placed heavy emphasis on the need for employers to accommodate the religious practices of their employees. This remains a developing area of the law since the Supreme Court’s decision in Groff v. DeJoy,² which dramatically increased the burden on employers to show that a requested religious accommodation is an undue hardship. Given Lucas’s stated priorities and long-standing interest, and the favorable climate in many courts, we expect that the EEOC in its investigations and litigation will seek to construe DeJoy as broadly as possible in favor of religious workers, and again make investigation and enforcement of charges of religious discrimination or harassment a focus. 

LGBTQ Employees. Acting Chair Lucas has fully endorsed the President’s Executive Order14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which, among other things, directs all federal agencies and federal employees to “enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes” and orders the removal of statements, policies and other communications that “promote or otherwise inculcate” so-called “gender ideology.” The administration also contends that the Supreme Court’s decision in Bostock v. Clayton County,³ in which it held that Title VII’s prohibition of discrimination “because of … sex” prohibits discrimination on the basis of sexual orientation and gender identity, has been interpreted too broadly and has directed the attorney general to issue guidance to “correct” what it perceives as a misapplication of the case. With respect to LGBTQ issues more broadly, since January the EEOC has removed from its website a number of resources relating to sexual orientation and gender identity discrimination published during the Biden administration, and in January 2025 indicated that at least for the foreseeable future, all charges alleging discrimination on the basis of sexual orientation or gender identity will be sent to national headquarters for review to ensure that they “comply with applicable executive orders to the fullest extent possible.” The agency also indicated that with respect to such charges it will issue a notice of right to sue if asked to by a charging party “as statutorily required.” With a confirmed Republican majority, we likely can expect additional guidance on the EEOC’s view of the contours of Bostock, as well as revision of guidance regarding harassment on the basis of gender identity and sexual orientation.

Pregnant Worker Fairness Act Regulations. Enacted in 2022, the Pregnant Workers Fairness Act (PWFA) requires covered entities, including employers with at least 15 employees, to reasonably accommodate a qualified employee’s and/or applicant’s known limitations related to, arising out of, or affected by pregnancy, childbirth, or medical conditions related thereto, unless such accommodations would be an undue hardship on the employer. When Congress enacted the PWFA, it directed the EEOC to issue regulations and provide examples of reasonable accommodations. When the Commission promulgated these rules, then-Commissioner Lucas voted against them. In a statement after becoming acting chair, she indicated that while she supported parts of the rule, she disagreed with a number of its provisions and opposes the regulation insofar as it “conflat[es] pregnancy and childbirth accommodation with accommodation of the female sex, that is, female biology and reproduction.” She contends that “The Commission extended the new accommodation requirements to reach virtually every condition, circumstance, or procedure that relates to any aspect of the female reproductive system.” We confidently predict that upon restoration of a quorum, the EEOC will either significantly modify the existing PWFA regulations or perhaps withdraw them entirely and craft a new set of rules that more narrowly defines the circumstances under which an employer may be required to accommodate a pregnant worker or applicant.

Harassment Guidance. In 2024, the Commission updated its guidance on harassment in the workplace, including new sections, post-Bostock, addressing how Title VII prohibits discrimination on the basis of sexual orientation and gender identity. Examples of unlawful discrimination that are provided within the updated guidance include “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.” Acting Chair Lucas voted against the guidance when it came before the Commission in 2024 and has stated publicly that she will seek to rescind or revisit it in whole or in part when the Commission has a quorum. Indeed, almost immediately after a Texas district court held that certain portions of the guidance relating to LGBTQ issues were unlawful, EEOC updated its website to show what portions of the guidance it considered void in light of the court’s order. With a quorum, we expect the Commission to formally repeal these provisions and potentially revisit the guidance entirely.

Litigation Authority. In the absence of a quorum, the agency has been limited in its ability to bring certain classes of significant litigation, including lawsuits alleging systemic or “pattern or practice” discrimination, or cases presenting unsettled matters of law or in conflict with precedent in the relevant judicial circuit; it has likewise been limited in its ability to file amicus briefs. With a restored quorum, the Commission may now move forward on such cases, although it is not yet clear what the agency’s litigation agenda will be under the current leadership. One thing that does seem clear is that the agency is unlikely to bring any suits alleging discrimination on the basis of disparate impact. Media reports indicate that the acting chair directed staff to close almost all pending disparate impact investigations by September 30, 2025. Employers are reminded, however, that while EEOC may choose to not pursue cases based on disparate impact, it remains a valid theory of discrimination under Title VII of the Civil Right Act, Supreme Court precedent, and numerous state law. As such, it can be invoked by private litigants irrespective of the EEOC’s position on the topic.         

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Even in the absence of a quorum, the EEOC has devoted significant time and resources to advancing the White House’s agenda on workplace civil rights in the first eight months of the administration. With a quorum and full authority to revisit old and promulgate new policy, we confidently predict it will aggressively continue to move forward on administration priorities.