Are employers ready for the lawsuits a Trump-era EEOC will pursue?

President Donald Trump hasn't wasted any time signaling to the world that his administration will be defined by unprecedented — and legally hazy — moves. The restructuring of the Equal Employment Opportunity Commission is a prime example, and one employers cannot tune out. 

Last month, Trump fired two of the three Democratic EEOC commissioners, Charlotte Burrows and Jocelyn Samuels, cutting their terms short by three years and one year, respectively. The EEOC now consists of one Republican commissioner, Andrea Lucas, who is now acting chair, one democratic commissioner and three open spots for Trump to fill. Samuels has stated she will challenge her termination in court. 

"The appointment of commissioners is supposed to be for a fixed five-year term, so the dismissal of a commissioner before the end of that term is unprecedented," says Andrew Scroggins, partner at law firm Seyfarth Shaw. "We have to leave it to the courts whether that's unlawful or not, but it's certainly not consistent with past practice."

Read more: How Latinx workers are being impacted by Trump-era policies

It's clear that the EEOC is undergoing a makeover of sorts, with the administration now having a clear path to a Republican-majority EEOC a few years ahead of schedule. This follows Trump's series of executive orders targeting DEI efforts and LGBTQ protections — some of which are already under legal fire. But what does this mean for the federal agency whose primary function is to protect civil rights in the workplace?

Shifting priorities

The EEOC has already removed guidance on LGBTQ worker protections from its website, signaling that gender identity and sexual orientation-based discrimination are no longer a priority for the agency. Notably, the EEOC requested to dismiss six transgender discrimination cases in response to Trump's executive order that announced the government would only recognize two sexes.

"That's something I've never seen in my years of practice against the EEOC," says Scroggins. "It's a significant shift by the EEOC to not only not seek out these kinds of cases, but apparently, now abandon their efforts to prosecute those cases at all."

Employers can expect this trend to continue as the EEOC works to meet the new administration's expectations. Not to mention, Lucas, the EEOC's acting chair, has outright stated that she is focused on "defending the biological and binary reality of sex,'' and "rooting out unlawful DEI-motivated race and sex discrimination."

Read more: 5 ways DEI helps make teams more productive

"What the executive branch does is send a directive to [federal] agencies that now look for ways to further effectuate that executive order," says Christopher DeGroff, partner at Seyfarth Shaw. "For example, the EEOC is going to look for DEI-related practices and start to develop enforcement mechanisms to combat 'illegal DEI.'"

DeGroff also points out that the EEOC's previous enforcement priorities, which were supposed to be in place until 2028, included protecting immigrant and migrant workers. However, Lucas has already claimed the agency will protect American workers from "anti-American national origin discrimination" — meaning immigrant and migrant workers will likely see fewer workplace protections while also facing Trump's deportation policies.  

"We will likely see the EEOC search for litigation opportunities to drive home [Lucas'] message," says DeGroff. "That's the usual M.O. of the agency: They announce what they're going to be targeting, and then they look for a case to show that the message has teeth."

Prepare for what's coming down the pipeline

DeGroff and Scroggins advise employers to first take a close look at their DEI policies. Companies should know their hiring and retention trends and know which groups are underrepresented. 

"This doesn't necessarily mean you should change your DEI practices, but be aware of how these policies are being applied," says DeGroff. "This is not the time to be surprised."

Read more: How far will Trump go to erase DEI in the workplace?

Scroggins notes that while "DEI'' has essentially become a bad word, that doesn't mean employer programs are actually controversial. "Maybe employers will just find new ways to describe some of these things, that before, they used the shorthand of DEI for," he says.

Both attorneys also urge employers to tread carefully around religious belief-based accommodation requests. President Trump has ordered Attorney General Pam Bondi to create a task force that will identify and eliminate "anti-Christian bias" in the U.S., and the EEOC is implicated.

"That's something that employers typically have less experience with," says Scroggins. "A refresher on what the rules are for responding to requests for accommodation of religious beliefs is probably a good idea for a lot of employers.''