The nation’s prime office civil rights company reopened with its quorum restored after the longest federal shutdown in U.S. historical past ended Nov. 12. It’s the beginning of a brand new period for the U.S. Equal Employment Alternative Fee of the second Trump administration — although the fee stays a wildcard for labor and employment watchers.
EEOC’s previous playbook for imposing antidiscrimination is “being thrown out the window,” mentioned Gerald Maatman, companion at Duane Morris, as exemplified by the company’s latest retreat from disparate-impact discrimination claims. This alone represents an enormous shift in EEOC’s enforcement technique, Maatman added, and it might consequence within the company submitting fewer systemic discrimination lawsuits, which regularly invoke disparate-impact principle, on behalf of huge teams of workers.
“That’s going to have a big impact on its docket, the way in which it investigates instances and positively would recommend that the times of the actually large instances involving lots of of hundreds of persons are numbered,” Maatman mentioned.
It’s one in every of a number of adjustments made in response to an govt order by President Donald Trump, who has tasked EEOC Chair Andrea Lucas and different federal company heads with reversing Biden-era antidiscrimination priorities. Attorneys who spoke to HR Dive count on the company’s 2-1 Republican majority to behave swiftly in pursuit of the administration’s priorities.
Andrea Lucas, EEOC’s chair, speaks at a affirmation listening to on June 18, 2025, in Washington, D.C. Lucas has led the company’s enforcement pivot on range, fairness and inclusion applications.
DEI applications needs to be ‘intently scrutinized’ forward of enforcement menace
EEOC’s shift on range, fairness and inclusion applications was already obvious with Lucas issuing steerage final March on discrimination associated to office DEI. The notion of “unlawful” DEI stays unwell outlined, mentioned Frank Morris, member of the agency at Epstein Becker Inexperienced, however EEOC will proceed to place stress on employers regardless.
DEI applications “needs to be very, very intently scrutinized” as employers be taught extra concerning the company’s strategy, Morris added. Administration-side attorneys have cautioned employers to reframe applications in order that they comport with the precept of equal alternative for all staff, and there are a variety of particular changes organizations could think about.
As an example, Morris mentioned mentorship applications that had been as soon as tailor-made to particular demographic teams needs to be opened to any and all workers on a nondiscriminatory foundation. Likewise with coaching applications and affinity teams, the previous being of be aware due to EEOC’s emphasis on non secular discrimination and the potential non secular objections workers could need to collaborating in DEI-related coaching.
“It’s a prudent time, frankly, simply to do a proactive audit,” Morris mentioned, noting that his agency has labored with purchasers to look at how DEI applications are written, in addition to how they’re put into observe.
One EEOC motion that will not obtain as a lot consideration transferring ahead is the sort of direct inquiry exemplified by Lucas’ sequence of letters to giant legislation corporations, issued earlier this 12 months, which requested the corporations for particulars about their DEI applications.
The letters appeared vital throughout a time when Trump was actively negotiating offers with legislation corporations, Maatman mentioned, however the specter of EEOC making additional such inquiries could have declined. EEOC additionally faces a lawsuit from a gaggle of legislation college students difficult the legality of the letters, which stays in litigation.
“My sense is that this situation has quieted down, and also you’re going to see a ruling within the legislation pupil case, and whether or not or not this situation revs again up stays to be seen,” Maatman mentioned.
Nonetheless, employers are involved about their DEI applications given the crosshairs that Trump and Lucas have positioned on them. However HR groups additionally ought to understand that the company historically solely is concerned in investigating discrimination when an worker information a cost, mentioned Emily Keimig, companion at Venable.
“I don’t suppose they’re going to be, as an company, sua sponte taking over investigations,” she continued. “Their jurisdiction, so to talk, is proscribed, and it’s restricted to investigating these claims introduced by people who suspect that they’ve been harmed.”
As for different particular proactive measures, Keimig mentioned employers ought to revisit DEI applications that spell out explicit teams based mostly on traits equivalent to race, intercourse or nationwide origin — particularly those who purpose to extend illustration thereof — as these are prone to be challenged by EEOC.
The subsequent steps employers take with respect to those applications could fluctuate, however HR can begin by defining what the aim and intent of a selected program is and dealing backwards to find out how the group can obtain these goals in a method that’s unlikely to be seen as discriminatory, Keimig mentioned.
EEOC has retreated from ongoing instances alleging discrimination on the idea of gender identification, leaving non-public plaintiffs and advocacy teams to pursue such litigation.
Getty Pictures
Transgender bias retreat is ‘new territory,’ however non-public plaintiffs will likely be motivated to sue
Lucas has directed EEOC’s litigators to stop litigation of ongoing instances alleging gender-identity discrimination on behalf of transgender plaintiffs. It’s one other transfer made in response to a Trump govt order, this time a January proclamation on the “organic actuality of intercourse” that directed businesses to stop references to gender identification as an idea.
As with DEI, EEOC’s shift on gender identification is said to the Republican majority’s give attention to non secular antidiscrimination enforcement, Morris mentioned, notably with respect to workers’ refusal, on non secular grounds, to stick to pronoun use tips and comparable insurance policies meant to be supportive of LGBTQ+ staff.
As a result of EEOC is anxious to implement such claims — and seems sure to rescind its Biden-era harassment steerage that labeled sure gender-identity-related discrimination as illegal — employers would possibly have to act sooner reasonably than later to find out their posture on related insurance policies and alter if wanted, Morris continued.
Bogs and single-sex amenities are anticipated to be a selected flashpoint. If employers have been allowing workers to make use of these amenities based mostly on elements aside from organic intercourse, “that will likely be an space the place it’s 100% sure the fee will likely be eager about prices and investigating such claims,” Morris mentioned. Employers that want to proceed to accommodate transgender staff might be able to alter their insurance policies by providing single-person restrooms the place attainable, amongst different measures, he added.
Alternatively, EEOC’s shift on LGBTQ+ discrimination could not change a lot for employers hoping to keep up secure and respectful workplaces, Keimig mentioned. She famous that many organizations had adopted insurance policies in keeping with EEOC’s harassment steerage earlier than the publication of that doc and are prone to proceed them whether it is rescinded. That’s partially resulting from an array of state and native legal guidelines that prohibit gender-identity discrimination.
“I don’t suppose the steerage was earth-shattering, and I don’t suppose its rescission is prone to be notably earth-shattering both,” Keimig mentioned. “Most employers are persevering with to implement and function, for sensible functions, insurance policies that defend all of these teams, whether or not LGBTQ+ teams or different traditionally minority teams.”
There are numerous authorized dangers to following EEOC’s lead on gender-identity discrimination, and people dangers are furthered by the flexibility of personal plaintiffs and advocacy teams to proceed bringing related lawsuits towards employers. EEOC’s resolution to again out of such instances could also be “new territory,” to borrow Maatman’s phrasing, however different events are already stepping as much as the plate on behalf of affected staff.
“The place authorities entities reduce or scale down enforcement litigation, usually the non-public plaintiffs bar fills the void,” Maatman mentioned. Advocacy teams can sue too, he added, “and there’s stress on these teams to take action.”
EEOC additionally tends to file a small proportion of annual discrimination instances in U.S. courts. Extra to the purpose, nonetheless, is that employers wish to be recognized for promoting good services and products, having an excellent status and attracting expertise, Maatman mentioned, and discrimination lawsuits gained’t be good for enterprise.
Employers additionally is not going to see a lot sensible distinction between EEOC and personal events with regards to the pursuit of a case, Keimig mentioned, setting apart the company’s capability to fund in depth litigation. Morris mentioned the identical, noting that an employer’s strategy is prone to be considerably the identical no matter which social gathering brings a declare.
View of the U.S. Capitol Dome on Oct. 24, 2023, in Washington, D.C. The top of the longest-ever federal shutdown allowed EEOC to restart operations, however the company could take time to totally get on prime of its case load.
Win McNamee by way of Getty Pictures
Count on a quick post-shutdown restart with no time for complacency
Deadlines have already restarted in ongoing lawsuits affected by the shutdown, although it’s anticipated that EEOC will take time to totally get on prime of its case load, Morris mentioned.
Those who cope with areas marked as priorities for almost all, equivalent to non secular discrimination and nationwide origin discrimination, might transfer sooner. Employers affected by such litigation ought to take care to be up to the mark, per Morris, and begin drafting submissions in instances that haven’t but restarted.
“You’ll be able to’t foresee what the federal government’s strategy and place will likely be on a wide range of points, so don’t wait till the world is on the door to start out taking appropriately precautionary measures,” he added.
Even figuring out what points Lucas and EEOC have emphasised most in public statements and litigation will not be sufficient. Keimig suggested employers to maintain an ear to the bottom and be suggested of any adjustments to the fee’s enforcement.
“It could activate the dime,” she mentioned. “All the time bear in mind that businesses are altering, the administration is altering, the non-public plaintiffs’ bar is altering — there’s by no means a day in which you’ll be able to be complacent.”
