The U.S. Equal Employment Opportunity Commission’s (EEOC) posture has shifted, and employers should take note. With the recent confirmation of a second Republican EEOC commissioner, Brittany Panuccio, the EEOC has a quorum on its five-seat panel, with a two-to-one Republican majority. With the quorum restored, the EEOC can alter policy, guidance, strategic plans, and litigation priorities.
What to Expect
Early moves by EEOC Acting Chair Andrea Lucas indicate reduced processing of certain transgender-related charges (only processing complaints involving “hiring, discharge or promotion”), moving to dismiss gender identity cases the agency had been pursuing, and a deprioritization of claims based on a disparate impact theory of liability.
With the EEOC now able to vote on its direction and initiatives, employers should expect to see:
- A reconsideration of Biden-era harassment guidance (which said that using the wrong pronouns for an employee or preventing an employee from using the bathroom of the gender the person identifies with was a form of sex harassment in violation of Title VII of the Civil Rights Act of 1964)
- A reconsideration of rules interpreting the Pregnant Workers Fairness Act (PWFA) in ways that could narrow the scope of required accommodations for women relating to reproductive health
- Increased litigation targeting diversity, equity, and inclusion (DEI) practices the agency views as discriminatory
- A reassessment of EEO-1 practices
Action Plan for Employers
You should recalibrate rather than retreat. Employers’ North Star should continue to foster an inclusive and respectful workplace for all, regardless of any change in political winds. Consider the following suggestions.
DEI: Review DEI programs and training to ensure they comply with federal, state, and local antidiscrimination laws. Ensure job screening, hiring, promotion, mentorship, and pipeline initiatives are grounded in neutral, job-related criteria; avoid racial and gender preferences, as well as any other quotas, reserved slots, priorities, or categorical exclusions; and document business purposes.
Gender identity/sexual orientation discrimination: Continue robust and regular antidiscrimination/antiharassment/antiretaliation policies, training, and practices that align with the Supreme Court’s Bostock decision and applicable state and local antidiscrimination laws, including respectful workplace expectations and complaint procedures. Train managers on legal requirements and state and local laws that may prohibit or prevent employees from using bathrooms aligned with their gender identity.
Disparate impact: Maintain adverse impact testing for hiring (including with respect to the use of artificial intelligence tools in screening job applicants that may result in a disparate impact on legally protected groups), promotion, and reduction-in-force decisions. While the EEOC may be disregarding disparate impact cases, courts and employees’ lawyers haven’t. Courts still recognize disparate impact as a form of unlawful discrimination. Use validated assessments, monitor outcomes, and remediate unexplained disparities.
Reasonable accommodation: Refresh reasonable accommodation toolkits. Expect heightened religious accommodation scrutiny, including participation in DEI-related activities, and be prepared to reevaluate the scope of accommodations relating to pregnancy as PWFA rules evolve (while remaining mindful of more state and local laws—requiring reasonable accommodation of pregnancy, childbirth, and related medical conditions—that may be broader in scope than the PWFA). Train managers on handling requests for reasonable accommodation.
Lisa M. Brauner is an attorney with Whiteford, Taylor & Preston, L.L.P., and can be reached at lbrauner@whitefordlaw.com.