Bench & Bar November/December 2025

FEATURE: EMPLOYMENT LAW

Lacking a quorum did not render the Commission inactive. By January 28, 2025, Acting Chair Lucas announced that she had already made a number of changes within the Commission, consistent with Executive Order 14168, like removing all “statements, policies, regulations, forms, communi cations, or other internal and external messages promoting gender ideology.” 32 Following these changes, the Commission moved to dismiss the lawsuits it previously filed on behalf of individuals who claimed they were discriminated against because of their gender identity, reasoning that the EEOC’s continued involvement in the liti gation “may be inconsistent” with Executive Orders. 33 Only time will tell what Acting Chair Lucas can accomplish with a Commission at full strength, which offers a more robust set of tools; it could mean the elimination of “disparate impact” enforcement as we know it. 34 One way or the other, it seems her pri orities will remain consistent with those of the White House. 35 President Trump’s latest nominee to the Commission, Brit tany Panuccio, seems similarly aligned with the administration’s interpretation of equal employment opportunity laws. 36

18 See 88 Fed. Reg. 67750 (Oct. 2, 2023). 19 Texas v. Equal Emp. Opportunity Comm’n , No. 2:24-CV-173-Z, 2025 WL 1414332, at *10, 14-15 (May 15, 2025). 20 Id . at *3. 21 Commissioner Andrea R. Lucas’s Statement on EEOC Enforcement Guidance on Harassment in the Workplace , U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/commission er-andrea-r-lucass-statement-eeoc-enforce ment-guidance-harassment-workplace. 22 Id . 23 President Appoints Andrea R. Lucas EEOC Acting Chair , U.S. Equal Emp. Opportunity Comm’n (Jan. 21, 2025), https://www.eeoc.gov/news room/president-appoints-andrea-r-lucas-eeoc acting-chair. 24 Exec. Order No. 14168, 90 Fed. Reg. 8615 (Jan. 21, 2025). 25 President Appoints Andrea R. Lucas EEOC Acting Chair , U.S. Equal Emp. Opportunity Comm’n (Jan. 21, 2025), https://www.eeoc.gov/news room/president-appoints-andrea-r-lucas-eeoc acting-chair. 26 See Matthew Golden & Emily Steel, Trump Fired E.E.O.C. Commissioners in Late-Night Purge , N.Y. Times, Jan. 28, 2025. 27 Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Work place , U.S. Equal Emp. Opportunity Comm’n (Jan. 28, 2025), https://www.eeoc.gov/news In 2023, the Supreme Court announced another monumental decision, Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College , holding that the race-conscious admissions programs used by Harvard and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment. 38 Notably, Harvard’s admissions program once was cited as a model for lawful affir mative action plans in college admissions, as well as similar plans used in the employ ment context. 39 In the wake of the Court's Harvard decision, some commenters (including Acting Chair Lucas) observed that a similar, albeit inverse, pattern might emerge, with the decision ultimately serving as a basis for the undoing of workplace DEI initiatives. 40 In March of 2025, Acting Chair Lucas took a number of actions in furtherance Consequently, it will be important to con tinue monitoring developments related to another priority shared by President Trump and Acting Chair Lucas: “rooting out unlawful DEI-motivated race and sex discrimination[.]” 37 DEI, DOA?

of Executive Order 14173, which directs all executive agencies and departments to “combat illegal private-sector DEI prefer ences, mandates, policies and activities. 41 First, she sent letters to 20 law firms to determine whether their “touted DEI-prac tices . . . entailed or resulted in race- and sex-based disparate treatment against white or male employees, applicants, and training program participants[.]” 42 Some of those law firms eventually entered into settlements with the EEOC, agreeing to “no longer categorize any lawful employment or practices (including those addressing equal employment opportunity, accessibility, or reasonable accommodation for religion, disability, or pregnancy) as DEI[.]” 43 A few days after sending those letters, the EEOC and Department of Justice ("DOJ") jointly issued a pair of technical assis tance documents “focused on educating the public about unlawful discrimination related to [DEI] in the workplace.” 44 One of the documents, titled “What You Should Know About DEI-Related Discrimination at Work,” provides a detailed roadmap explaining how the EEOC might handle claims alleging unlawful discrimination based on DEI initiatives. 45 The other is a room/removing-gender-ideology-and-restor ing-eeocs-role-protecting-women-workplace; see also 29 C.F.R. § 1695.2(d). 28 Resolution Concerning the Commission’s Author ity to Commence or Intervene in Litigation and the Commission’s Interest in Information Con cerning Appeals , U.S. Equal Emp. Opportunity Comm’n (Jan. 13, 2021), https://www.eeoc.gov/ resolution-concerning-commissions-authori ty-commence-or-intervene-litigation-and-com missions-0. 29 Id . 30 Id . 31 Id . 32 Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Work place , U.S. Equal Emp. Opportunity Comm’n (Jan. 28, 2025), https://www.eeoc.gov/news room/removing-gender-ideology-and-restor ing-eeocs-role-protecting-women-workplace. 33 See , e.g. , Stipulation to Stay Pending Deadlines & Dismiss with Prejudice, U.S. Equal Emp’t Op portunity Comm’n v. Lush Handmade Cosmetics LLC , No. 5:24-cv-06859-PCP (N.D. Cal. Sept. 30, 2024). 34 See Exec. Order No. 14281, 90 Fed. Reg. 17537 (Apr. 23, 2025); see also Clair Savage and Alex andra Olson, Civil Rights Agency Drops a Key Tool Used to Investigate Workplace Discrimina tion , A.P. News (Sept. 30, 2025), https://apnews. com/article/trump-discrimination-ai-eeoc-dis-

ENDNOTES 1 Bostock v. Clayton Cnty., Georgia , 590 U.S. 644, 653 (2020).

2 Id . at 653. 3 Id . at 654. 4 Id . 5 Id . at 653-54. 6 Id . (internal quotations omitted).

7 Bostock v. Clayton Cnty. Bd. of Commissioners , 723 F. App’x 964 (11th Cir. 2018) (emphasis in original) (internal quotations and citations omit ted). 8 Bostock , 590 U.S. 644, at 660. (emphasis added). 9 Id . at 651-52, 660. 10 Macy v. Holder , Appeal No. 0120120821, 2012 WL 1435995, at *11 (Apr. 20, 2012). 11 Baldwin v. Foxx , Appeal No. 0120133080, 2015 WL 4397641, at *10 (July 16, 2015). 12 Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity , U.S. Equal Emp. Opportunity Comm’n (June 15, 2021), https://perma.cc/9VUBZK2p. 13 Id . 14 Id . 15 Texas v. Equal Emp. Opportunity Comm’n , 633 F. Supp. 3d 824, 831, 847 (N.D. Tex. 2022) (cita tions omitted). 16 See id. at 831, 833-34. (citations omitted). 17 See id . at 844.

10 november/december 2025