By: Jonathan F. Whalen, Esq.
With the new administration, major changes to federal policies, dramatic overhauls to federal agencies, numerous executive orders regarding employment practices, widespread federal layoffs, and unprecedented removals of agency leaders have dominated the headlines, as the new administration has taken wide-ranging action across nearly all sectors of government. The Equal Employment Opportunity Commission (“EEOC”), the agency charged with enforcing Title VII, the ADA, and other anti-discrimination laws, has not been immune from these overhauls. Shortly after taking office, President Trump removed two (2) EEOC commissioners as well as the EEOC General Counsel. Though the latter’s removal was unsurprising, the removal of incumbent EEOC commissioners was without precedent in the sixty (60) years of the EEOC’s existence. Amid this seemingly non-stop blitz of executive orders, changes to enforcement priorities, shifting regulatory interpretations, etc., employers, including public employers in Pennsylvania, have been plunged into uncertainty. Employers are particularly concerned regarding how their employment practices, including their hiring policies, anti-discrimination policies, harassment policies, accommodations policies, etc., might be impacted by this atmosphere of change and uncertainty. While it has no doubt been difficult for employers to keep track of all these major changes, certain patterns are emerging that could inform employers what they might expect over the next several years.
To begin, while the President’s removal of EEOC commissioners, like the removal of NLRB member Gwynne Wilcox, will be subject to challenge, it has already had a discernible impact on EEOC enforcement priorities, including by resulting in the EEOC’s voluntary dismissal of claims regarding discrimination based on gender identity. Additionally, on May 15, 2025, a federal court in Texas, et al. v. Equal Employment Opportunity Commission vacated prior EEOC guidance addressing “harassment based on sexual orientation or gender identity, including how that identity is expressed,” ruling that the guidance “contravene(d)” Title VII “by expanding the scope of ‘sex’ beyond the biological binary.” Due to President Trump’s removal of two (2) commissioners, the EEOC is without a quorum and cannot rescind guidance, but nevertheless issued a press release identifying the vacated guidance. A week later, on May 21, 2025, another federal court, in Louisiana, et al. v. Equal Employment Opportunity Commission, vacated the EEOC’s Final Rule interpreting the Pregnant Workers’ Fairness Act (“PWFA”), which had interpreted the PWFA to require employers to make reasonable accommodations for employees electing to have abortions. It is unlikely that the current EEOC will appeal this ruling.
Moreover, on May 20, 2025, Angela Lucas, the Acting Director of the EEOC, issued a statement explaining that Title VII prohibits “any employment actions based on, or motivated in whole or in part by, an employee’s race, sex, or other protected characteristics,” and warning that “there is no ‘diversity’ exception to Title VII’s requirements.” This statement came on the heels of executive orders targeting “Diversity, Equity and Inclusion” (“DEI”) initiatives, as well as the issuance of EEOC guidance entitled “What To Do If You Experience Discrimination Related to DEI at Work.” This new EEOC guidance, among other things, addressed workplace “DEI” training, criticized traditional justifications for “DEI” programs, and provided guidance on filing charges regarding alleged “DEI”-based discrimination and “reverse discrimination.” The May 20 statement from Director Lucas also referred to the recent executive order entitled “Restoring Equality of Opportunity And Meritocracy,” which was designed “to eliminate the use of disparate-impact liability in all contexts” and instructed the EEOC to “deprioritize enforcement of all statutes and regulations” regarding “disparate-impact.” Unlike an “intentional discrimination” claim involving employment actions specifically based on an employee/applicant’s race, sex or other characteristic, a “disparate impact” claim addresses employment practices that are “facially neutral” but may fall more harshly on one group than another. In recent years, “disparate impact” litigation resulted in many Pennsylvania law enforcement agencies, including the State Police and numerous municipal police departments, to move away from the use of “universal” fitness testing standards for police applicants and to instead institute “gender-normed” standards, under the theory that using the same cut-off scores for male and female applicants imposed a “disparate impact” on the latter.
The statement from Director Lucas confirmed that the EEOC “will fully…comply with this and all Executive Orders” and will “prioritize remedying intentional discrimination claims,” signaling that the EEOC’s enforcement activities will ignore disparate impact claims while prioritizing claims that are in keeping with recent executive orders, including those targeting “DEI” programs, principles, and employment actions. Relatedly, on May 19, 2025, the Department of Justice (“DOJ”) unveiled its “Civil Rights Fraud Initiative.” The initiative takes cues from recent executive orders which had ordered the termination of federal DEI programs and had directed federal agencies to “deter” DEI programs in other contexts, including the private sector. Under the initiative, the DOJ will potentially utilize the False Claims Act “against those who defraud the United States by taking its money while knowingly violating civil rights laws.” Put differently, the initiative appears designed to go after entities, including, potentially, state and local governments, which receive federal funds yet implement DEI-based programs that are deemed unlawful.
It seems clear that enforcement agencies, including the EEOC, will de-prioritize if not totally abandon enforcement of anti-discrimination laws under a “disparate impact” analysis, and the enforcement of anti-discrimination laws with respect to gender identity are likely to fall by the wayside. At the same time, charges challenging DEI programs and principles and/or alleging “reverse discrimination” may be prioritized, and such programs may also be challenged by other federal agencies such as the DOJ. Accordingly, it is crucial that public employers continually monitor legal developments regarding DEI issues, ensure that their policies are up-to-date and reflective of current EEOC guidance, and review any current practices and programs that could jeopardize funding in this new, tumultuous landscape.
Takeaways:
- Since President Trump’s inauguration, a flurry of executive orders, court decisions, overhauls of federal agencies, and shifts in regulatory interpretations/guidance and enforcement priorities have created an atmosphere of uncertainty for employers. This is particularly true when it comes to the EEOC and the entire landscape of anti-discrimination law, reasonable accommodations law, and other laws and policies affecting the workplace.
- Certain patterns appear to be emerging, however, that could inform employers and about what they might expect over the next several years, and how they should be viewing their current hiring, anti-discrimination, harassment, accommodations, and other employment policies and practices.
- It seems clear that the EEOC and other enforcement agencies will de-prioritize, if not entirely abandon, charges involving “disparate impact” theories, and will look with scrutiny if not outright hostility toward actions centered on the notion of gender identity as well as DEI programs.
- In light of recent executive orders, the current position of the EEOC on these matters, and the “Civil Rights Fraud Initiative,” employers should carefully and continually monitor legal developments regarding DEI issues and ensure that their policies are up-to-date and reflective of current EEOC guidance, and should review any current practices and programs that could jeopardize funding.
Bottom Line:
Though executive orders and other dramatic changes in the federal government have undoubtedly created an atmosphere of uncertainty for employers, several identifiable patterns are emerging of which employers should take note. The EEOC will de-prioritize enforcement of anti-discrimination laws with respect to gender identity and will likely abandon charges brought under a “disparate impact” analysis. At the same time, charges alleging “reverse discrimination” or discrimination relating to an employer’s DEI programs may be prioritized. In light of these developments, it is crucial that public employers continually monitor legal developments, ensure that their policies are up-to-date and reflective of current EEOC guidance and other applicable laws and regulations, and review any current practices and programs that could jeopardize funding in this new, tumultuous employment law landscape.
