EEOC, Like NLRB, Lacks Quorum, Stalling Rulemaking Under New Administration
On January 27, 2025, President Trump fired Charlotte A. Burrows (the “EEOC”, or “Commission”) and Jocelyn Samuels. The two confirmed this in separate statements. This is the first time a president has removed EEOC Commissioners without cause before the end of their five-year terms. The move may be challenged in court. The removals have left the EEOC with only two commissioners. Andrea R. Lucas is a Republican who was appointed by President Trump to act as Acting Chair last week. Kalpana Kotagal is a Democrat, appointed by former President Biden. Her term expires on July 1, 2027. The final seat on the Commission has been vacant since July 1, 2024, when former Commissioner Keith Sonderling, who was recently nominated by President Trump to serve as deputy labor secretary, completed his five-year term.
President Trump also fired EEOC General Counsel Karla Gilbride, who confirmed her dismissal on Tuesday, January 28, 2025. Gilbride was confirmed by the Senate and nominated by former president Biden in October 2023. She was scheduled to serve a term of four years that would expire in 2027.
Removal of EEOC Commissioners
Title VII of the Civil Rights Act of 1964 created the EEOC, which functions as a bi-partisan, independent commission. The law stipulates that the president nominates the commissioners, and the Senate confirms them for staggered five-year terms. Title VII also states that no more than 3 of the commissioners can be from the same political party. Title VII does specify any grounds for the removal of EEOC Commissioners. In the past, however, after a new administration has entered the White House, commissioners have served out the remainder of their five-year term.
Burrows, who served as Chair of the Commission under the Biden Administration, was confirmed by the Senate to a third term in November 2023 that was set to expire on July 1, 2028. Samuels was appointed by President Trump in his first term and nominated for a second, expiring July 1, 2026, term by former President Biden. In separate statements, Burrows and Samuels expressed their disagreement with the President’s “unprecedented” actions and vowed to explore the “legal options” available to them.
Implications for EEOC Actions Moving Forward
In the absence of any removals by President Trump, Democrats would have maintained a majority on the Commission until the expiration of Samuels’ term in 2026. With only Lucas and Kotagal remaining, the Commission does not have a quorum. According to Title VII, a quorum of the EEOC requires three commissioners. The EEOC is unable to issue formal guidance, modify or revoke it without a quorum. As a result, without a quorum, EEOC guidance remains effectively at a standstill.
As Proskauer previously covered, on Tuesday, January 21, 2025, newly appointed Acting Chair Lucas issued a statement setting forth her enforcement priorities. Lucas’ statement on Tuesday, January 28, 2025 stated that she “cannot unilaterally modify or remove certain ‘gender-identity’ related documents that are subject to the President’s directives in
executive orders” without a unanimous vote of the Commission. Acting Chair Lucas cannot formally rescind any EEOC guidance she deems inconsistent with Executive Order 14066, including the EEOC’s April 2024 guidance entitled “Enforcement Guidance for Harassment at Workplace.” Lucas noted, however, that she voted to rescind this guidance. She also stated that, while she currently cannot rescind parts of the agency’s guidance that are inconsistent Executive Order 14066, [aforementioned] still opposes those portions of guidance If that happens, the Republican Commissioners will have the majority needed to issue new rules and revoke official guidance. When that occurs, employers should expect Acting Chair Lucas to formally rescind “Enforcement Guidance on Harassment in the Workplace” as directed by the Executive Order.[she]President Trump’s EEOC removals came just hours after President Trump removed National Labor Relations Board General Counsel Jennifer A. Abruzzo and Democratic Board member Gwynne A. Wilcox in a similarly unprecedented move that left the NLRB without a quorum. You can read more about these removals in our Labor Relations Update Blog.
