1 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP PART I: Agency Composition A . Equal Employment Opportunity Commission Composition and Background In FY 2024, under the leadership of Chair Charlotte A. Burrows, the EEOC advanced Democratic policy priorities. President Biden’s nominee for the EEOC General Counsel position, Karla Gilbride, was confirmed by the Senate on October 17, 2023, giving the EEOC a full complement of Senate-confirmed Democratic political leadership for almost all of FY 2024. With the July 1 expiration of the term of Commissioner Keith E. Sonderling,1 a Republican appointee, the Commission ended FY 2024 with a 3-1 Democratic majority. In FY 2024, Chair Burrows wielded her Democratic majority on the Commission to advance some policy initiatives over the objection of Republicans on the Commission, including issuing the EEOC’s long-awaited enforcement guidance on harassment in the workplace and its interpretative guidance to implement the Pregnant Workers Fairness Act (PWFA). The vast majority of the EEOC’s operations, including its litigation and enforcement activity, are not subject to political considerations, are conducted with tacit or explicit bipartisan approval from its political leadership, and are left squarely in the hands of the EEOC’s career leadership and front-line staff in the various District Offices throughout the country. This bipartisan approach is reflected in the Commission’s recent voting records. For example, in FY 2024, Republican Commissioner Andrea Lucas voted to approve 22 of the 24 litigation recommendations (92%) that came before the Commission for a vote. With the 2024 election of President Donald Trump and Republicans regaining control of the Senate, the winds of political change will immediately reshape the EEOC’s political leadership. The Commission’s Senate-confirmed leadership team includes five Commission members, each nominated by the President and confirmed by the Senate for a five-year term. The incumbent President designates one of the Commissioners as the Chair, and another Commissioner can be designated as the Vice Chair. Of the five Commissioners, no more than three may be members of the same political party, a statutory requirement notionally promoting bipartisanship that outlives administration changes. The EEOC’s General Counsel is nominated by the President and confirmed by the Senate for a four-year term. After his second inauguration, one of President Trump’s first executive actions was to designate Commissioner Andrea Lucas as Acting Chair. President Trump will be able to nominate a Republican to fill the current vacancy on the Commission, and upon that nominee’s confirmation by the Senate, there would be two Republicans and three Democrats on the EEOC. Assuming all of the currently serving Commissioners serve out the remainder of their terms, Republicans would not have a majority on the EEOC until the Senate confirms a replacement for Democrat Commissioner Jocelyn Samuels, whose term on the Commission expires on July 1, 2026. Even without a majority, the EEOC Chair (or an Acting Chair) can, on her own authority, issue subregulatory guidance such as technical assistance. Notable prior EEOC technical assistance documents, issued solely under the authority of the Chair, include the EEOC’s 2022 technical assistance regarding artificial intelligence and the Americans With Disabilities Act, its 2023 technical assistance regarding Title VII and AI, and the EEOC’s COVID-19 “What You Should Know” document, which was updated frequently during the COVID-19 pandemic. However, the issuance of formal EEOC guidance (including conducting notice-and-comment rulemaking pursuant to the Administrative Procedures Act) requires the approval by a majority of the Commissioners. President Trump’s Chair or Acting Chair could, on her own authority, revoke or revise technical assistance documents issued solely under the authority of a previous Chair. But she would not be able to revoke existing formal guidance, or start new rulemaking initiatives, without the approval of the full Commission. This means 1 While Commissioner Sonderling’s term on the Commission expired on July 1, 2024, Title VII allowed him to remain on the Commission for an additional 60 days. Title VII also allows Commissioners to hold over for even longer periods if the President nominates a replacement, but President Biden did not do so. Thus, Commissioner Sonderling left the EEOC on September 1, 2024. ©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 2 that without a Republican majority, President Trump’s EEOC Chair could not initiate formal rulemaking under the Administrative Procedures Act to revoke the EEOC’s recent Pregnant Workers’ Fairness Act rules, or the EEOC’s enforcement guidance on harassment in the workplace, nor could she commence any new regulatory initiatives under the APA. Similarly, modifications to the EEOC’s Strategic Plan or Strategic Enforcement Plan—discussed at length in Section II A.—would require Commission approval. President Biden at the start of his term fired then EEOC General Counsel Sharon Gustafson. President Trump has signaled his intent to treat that act as precedent and to fire EEOC General Counsel Karla Gilbride in the first days of his administration. Pursuant to the Federal Vacancies Reform Act, the current Deputy General Counsel, a career EEOC official, would be elevated to Acting General Counsel, and he would serve in that role until President Trump’s nominee for the EEOC GC position is confirmed by the Republicancontrolled Senate. And while the Commission has statutory responsibility for deciding when to commence or intervene in litigation against private sector employers, Title VII confers upon the General Counsel responsibility “for the conduct of litigation” by the EEOC.2 The Commission has previously delegated some of its authority to the General Counsel, but the extent of the delegation has changed over time. The Commission’s delegation of litigation authority that was in effect in FY 2024 was last modified in the waning days of the first Trump Administration. This delegation, effective January 13, 2021, asserted a greater level of involvement of the Commissioners in approving litigation recommendations. In particular, this modification provided for an initial review by the members of the Commission of the Office of General Counsel’s litigation recommendations, and, upon the request of a majority of the Commissioners, the General Counsel would be required to submit the matter to the Commission for a vote. Even so, consistent with previous years, in FY 2024 the vast majority of litigation matters presented to the Commission for a vote were approved on a bipartisan basis. In public comments, Chair Burrows previously expressed her desire to revisit the Commission’s litigation delegation processes. As of the date of this publication, the Democrats on the EEOC have not modified those procedures. B . EEOC Staffing Challenges in FY 2024 and Beyond Title VII confers on the EEOC’s Chair the sole responsibility “for the administrative operations of the Commission”.3 The Chair is responsible for hiring members of the career Senior Executive Service, and evaluating and managing the EEOC’s cadre of Senior Executives. In other words, the Chair is directly responsible for hiring and evaluating the performance of the 15 District Directors across the country, as well as other Senior Executives in the agency. Moreover, the Chair’s responsibility for the “administrative operations” of the EEOC includes the ability, exercised through the EEOC’s Chief Operating Officer, to allocate the EEOC’s budget to its various programs and operational efforts. While the Commission as a whole must vote on certain appropriations, the Chair has broad authority in making adjustments – both large and small – to how the Commission spends its money. The Chair and her staff are responsible for advocating before Congress for increases to the EEOC’s budget, and the Chair is also responsible for deciding exactly how the EEOC spends additional money appropriated by Congress. During the early years of the Biden Administration, the EEOC received significant budget increases, and Chair Burrows used those budget increases to invest in hiring front-line enforcement and litigation personnel. Recently, the EEOC has faced significant budget challenges. In FY 2023, the EEOC received $455 million in funding, and for FY 2024 the EEOC requested an increase of approximately $26 million (5.7%). However, Congress declined the request and held the EEOC’s budget at the previous year’s amount. The EEOC suffered another blow when President Biden in December 2023 issued an executive order that granted 2 See Section 705(b)(1). 3 See Section 705(a).
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