President Trump’s New EEOC Nominee and Changes to EEOC Guidance

By Kayla E. Snider - Skoler Abbott P.C.

July 15, 2025

Recently, President Donald Trump nominated Brittany Panuccio, an Assistant U.S. Attorney for the Southern District of Florida, to serve as a commissioner for the Equal Employment Opportunity Commission (EEOC).  The EEOC is a bipartisan commission made up of five presidentially appointed members.  However, the EEOC has been at a standstill because it currently only has two commissioners since President Trump fired Charlotte Burrows and Jocelyn Samuels in January 2025.  We talked about this unprecedented action earlier this year.  

If Panuccio is confirmed, the EEOC will finally have a quorum.  So, what does all of this mean for employers? 

What Is a Quorum and Why Is It Important?

A quorum is a technical term that means the EEOC has the power to take action.  For the EEOC to have a quorum, it must have at least 3 members.  With a quorum, the EEOC is able to:

• Approve of or dismiss litigation brought on behalf of the EEOC
• Issue, revise, and/or rescind formal guidance on enforcing federal laws
• Adopt new enforcement strategies and initiatives

Right now, the EEOC has not been able to take any formal action.  This has prohibited the EEOC from creating and issuing rules and policies that further the current administration’s political agenda.  However, if Panuccio is confirmed, the EEOC will be able to function again and will have a Republican majority.  While we do not know how Panuccio would vote, we expect that if she is confirmed the EEOC will shift in a more employer-friendly direction, but there will also be changes in the EEOC’s priorities—resulting in greater scrutiny of diversity, equity, and inclusion (DEI) programs, abortion-related accommodations, and matters related to gender identity.

What Do We Expect From the EEOC if There Is a Republican Majority?

Based on the statements of the EEOC’s Acting Chair, Andrea Lucas, once the EEOC has a quorum, we anticipate the EEOC to focus its attention on:

• Broadening what it considers an adverse action in the workplace when investigating and/or considering employers’ DEI programs
• Stopping investigation and litigation of neutral employee policies that have a disparate impact on certain groups
• Eliminating the recognition of gender identity from sexual harassment guidance and other similar guidance
• Eliminating guidance, policies, and regulations categorizing abortion as a pregnancy-related condition
• Increasing investigations into discrimination based on religion, national origin, race, and sex—especially where individuals feel DEI efforts have been unfair to them

While EEOC is Frozen, Federal Courts Take Action Regarding EEOC Guidance

While the EEOC has not been able to take action without a quorum, some federal courts have already weighed in on two of these topics. 

Texas Court Vacates Gender Identity Portions of EEOC Guidance

In April 2024, the EEOC published Enforcement Guidance on Harassment in the Workplace.  This guidance contained information about harassment based on gender identity; discussing intentional misgendering and denying access to the restroom that aligned with the employee’s gender identity.  The guidance noted that this was a form of sex discrimination under Title VII. 

The State of Texas and The Heritage Foundation sued the EEOC, arguing that the EEOC did not have the necessary authority to require employers to accommodate employees’ gender identities in the workplace.  The court agreed with this argument, stating that the EEOC’s guidance expanded the definition of “sex” in Title VII by going “beyond the biological binary.”  The court also noted that while Title VII prohibits discrimination, it does not place an affirmative duty on employers to adopt gender identity-based accommodations. 

The court ultimately vacated the portions of the EEOC’s guidance related to gender identity.  This means that the EEOC cannot rely on or enforce the gender identity provisions of its guidance against employers.

Louisiana Court Invalidates Rule Requiring Accommodation for Elective Abortions

Also in April 2024, the EEOC issued a new rule, “Implementation of the Pregnant Workers Fairness Act,” which required employers to make reasonable accommodations for employees with known limitations arising from pregnancy, childbirth, or related medical conditions.  The rule included language that “it will be readily apparent that certain medical conditions [including having or choosing to have an abortion] have a relation to pregnancy or childbirth.”  This required employers to accommodate employees who requested time off or another accommodation relating to an abortion (including a non-medically necessary, elective abortion), unless it would cause an undue hardship for the employer. 

The State of Louisiana sued the EEOC, arguing that the EEOC was never given the authority to require employers to make accommodations for elective abortions.  The court agreed with this argument, emphasizing that the Pregnant Workers Fairness Act (PWFA) was passed six months after the Supreme Court overturned Roe v. Wade and that, if Congress had wanted elective abortions to be accommodated, they would have written it into the PWFA.  Because Congress did not do that, the court concluded that the EEOC had exceeded its authority by requiring employers to make accommodations for elective abortions, and ultimately removed elective abortion from the EEOC’s definition of pregnancy, childbirth, or related medical condition. 

This decision means that an elective abortion is no longer considered a protected condition requiring accommodation under the PWFA, but the remainder of the EEOC’s rule still remains in full effect—including those portions related to medically necessary abortions.

It is not likely that the EEOC will appeal the decisions in these cases, but employers should be on the lookout for formal recission or revision of the EEOC’s rules on these topics by the EEOC. 

The Bottom Line

As is expected with every change in administration, employers should expect changing priorities and a shift in enforcement from the EEOC.  However, even with the changes at the federal level, it is important to remember that most states—including Massachusetts, Connecticut, and New York—prohibit discrimination based on gender identity and categorize abortion as a pregnancy-related condition requiring accommodation under state laws. 

If you or your company has any questions about your obligations under federal or state anti-discrimination laws, your DEI policy’s compliance with federal and state law, or you have been served with a charge of discrimination, consider contacting experienced labor and employment counsel.

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