KEY TAKEAWAYS

• In October, the EEOC was restored to full decision-making power for the first time since President Trump’s dismissal of two Democratic members in January.

• A Trump nominee and employer-friendly board member was recently approved by the Senate, and another Trump nominee for the general counsel position is likely to be confirmed by the Senate.

• If confirmed, the EEOC is expected to pursue the Trump Administration’s employer-focused agenda through its litigation strategy.

In October, the U.S. Equal Employment Opportunity Commission (EEOC) was restored to its full decision-making power for the first time since January.  If confirmed by the Senate, the EEOC will soon be headed by a long-time employment defense lawyer.

In January, President Donald Trump dismissed two Democratic EEOC board members and general counsel Karla Gillbride, which deprived the EEOC of a quorum. Without a quorum in the five-seat board, the EEOC lacked its ability to promulgate or rescind formal publications. The EEOC could still carry out day-to-day operations during this time.

The EEOC did not have a quorum until October 7, when the Senate confirmed and swore in Trump nominee Brittany Panuccio as the third member of the board. Panuccio joined acting Agency Chair Andrea Lucas and Commissioner Kalpana Kotagal. In her committee hearing for the nomination, Panuccio affirmed her commitment to advancing President Trump’s agenda if confirmed.

Next, on November 19, on the heels of Panuccio’s confirmation, President Trump nominated M. Carter Crow to serve a four-year term as general counsel of the EEOC. The general counsel is responsible for administering and implementing the EEOC’s policy through litigation. Mr. Crow is a career litigator in employment defense and currently serves as Norton Rose Fulbright’s global head of its employment and labor practice. Mr. Crow’s nomination must now go through a confirmation hearing before the Senate Committee on Health, Education, Labor, and Pensions (HELP).  If voted on by the Committee on HELP, the decision will be sent to the full Senate for a final confirmation vote. Currently, HELP has not set a date for the Mr. Crow confirmation hearing.

Employers can expect that a Republican-controlled board will implement more employer-friendly rules. Likewise, if confirmed, an EEOC in full Republican control is expected to rollback Biden-era policies that were friendly to employees and pursue an employer-focused agenda instead. However, until any of the current rules are rescinded and/or any new rules are promulgated, employers must continue to adhere to current EEOC guidelines and rules.

For any questions relating to the above, or for assistance with any employment and labor topic, please contact:

• Logan Arlen
• Cali L. Chandiramani
• Caroline J. Berdzik
• Stephen C. Mazzara
• Scott R. Green
• Christopher P. Maugans
• Or another member of the Employment and Labor practice group.