Trump EEOC to Lock Into Power Struggle With Democratic Majority

A second Trump administration eager to shift the EEOC away from support for diversity, equity, and inclusion programs and potentially reverse protections for pregnant and LGBTQ+ workers will be constrained by a Democratic panel majority in place until 2026.

Former President Trump is all but certain to appoint the only Republican currently on the Equal Employment Opportunity Commission, Andrea Lucas, as chair and put in place a new general counsel after he’s inaugurated. But they will be paired with three Democrats for the start of Trump’s second term.

The Democratic majority will prevent Republicans from initially targeting recent EEOC policy actions like inclusion of abortion care accommodations in the Pregnant Workers Fairness Act rules or LGBTQ+ protections in anti-harassment guidance, but a new general counsel could alter the agency’s litigation focus.

“Trump has already been president, and so we have seen the ways in which his administration has shifted the trajectory of enforcement at the EEOC,” said Stacy Hawkins, a professor at Rutgers Law School. “We saw him move away from enforcement of traditional kinds of agency power, in terms of looking at things like race and gender discrimination in the workplace.”

Priority Shifts

EEOC General Counsel Karla Gilbride will likely exit on her own after Trump takes office, as is traditional when the party in the White House changes, though President Joe Biden fired Trump appointee Sharon Gustafson in 2021 after she declined to quit voluntarily.

The chair and general counsel can set the course of what cases are considered for EEOC litigation among the tens of thousands of charges brought to the agency each year, but many will still require a majority vote to be filed by the EEOC in court.

A 2021 update to EEOC practices gives a majority of commissioners the ability to request a vote to bring most cases, meaning the commission’s three Democrats could further block Republicans’ ability to push their agenda through litigation in the first years of the Trump administration.

One of those Democrats will be gone in 2026, when Vice Chair Jocelyn Samuels’ term expires, and will be replaced by a Republican on the five-member panel.

Until the 2026 controlling party change, the commission will be more apt to vote on cases where there’s “more overlap along party lines,” said Joseph Seiner, a professor at the at the University of South Carolina Rice School of Law and former attorney with the EEOC.

“For the most part, with the exception of more politically sensitive issues, these often involve egregious claims of workplace misconduct that will continue to be pursued by the agency,” Seiner said.

The commission will be limited from taking any potential action to reverse workplace harassment guidance finalized in April that reinforced LGBTQ+ protections around misgendering and allowing workers to use the bathroom that fits their gender identity.

They’ll also be constrained from the the ability to reverse PWFA rules finalized this spring that require employers provide reasonable accommodations for workers that choose to have or not have an abortion.

Lucas voted against the final rules and issued a statement opposing how she said the EEOC broadened the scope of the PWFA, but reiterated her support of the law’s overall intent.

There’s also several ongoing lawsuits brought by Republican states and Catholic organizations seeking to block both the PWFA rules and the workplace harassment guidance.

The Department of Justice is representing the EEOC in those cases. Under Trump, there may be “litigation reversals,” said Deborah Widiss, a professor at the Indiana University Maurer School of Law.

In the cases challenging the PWFA, for instance, the DOJ may put in a separate brief that would not be on behalf of the EEOC, she said.

During Trump’s first term, the EEOC and DOJ diverged in their legal views on several civil rights questions, especially LGBTQ+ workplace protections, at times even arguing on opposite sides in court.

DEI Opposition

Trump was “famously very opposed” to DEI efforts in his last administration, Hawkins said, noting ways he sought to limit initiatives among federal contractors.

Democrats on the EEOC have said DEI efforts don’t violate Title VII of the 1964 Civil Rights Act through public statements issued after the US Supreme Court’s 2023 decision that curtailed affirmative action in college admissions.

“We might see a very different tack from the Trump administration. We did not see that explicitly during his last term, but certainly that kind of antagonism among conservatives to diversity policy has really expanded since the Supreme Court’s decision,” Hawkins said.

There’s also been growing momentum among anti-DEI activists and pressure for the EEOC to take on cases going after corporate DEI policies. Former Trump adviser Stephen Miller’s America First Legal group has filed dozens of letters with the EEOC asking it to investigate major companies that it alleges discriminate against straight, White males through diversity programs.

There may be a desire with a shift to Trump to “prioritize claims on behalf of White male plaintiffs,” said David Lopez, a Rutgers Law School professor and former EEOC general counsel in the Obama administration.

The Trump administration, and a Republican-controlled Senate, will likely have one open Republican EEOC vacancy to fill at the start of Trump’s term. The Biden administration has not put forward a nominee to fill a Republican spot vacated by Commissioner Keith Sonderling in July.

Where a nominee stands on issues related to DEI will emerge as a “litmus test” for future Republican nominees, said Victoria Lipnic, a partner at Resolution Economics and a former EEOC acting chair.

Trump’s mix of backing from “cultural conservatives” and “business conservatives” could lead to “sparring” over the agency’s overall priorities and among potential GOP nominees to EEOC positions, Lopez said.