Executive Order, Leadership Shifts Point to Gender-Related Policy Changes at EEOC

Changes at the U.S. Equal Employment Opportunity Commission (EEOC) raise questions for employers about the bases for some complaints filed by employees. Recent removals also may leave the commission without the quorum needed to update guidance and pursue certain investigations. To stay compliant, employers need to evaluate how changes in EEOC policy intersect with Title VII’s discrimination protections.

Executive Order on Gender Ideology

In compliance with President Trump’s Executive Order 14168, EEOC Acting Chair Andrea Lucas announced Jan. 28 that the agency is “returning to its mission of protecting women from sexual harassment and sex-based discrimination in the workplace by rolling back the Biden administration’s gender identity agenda.”

Signed by the president on Jan. 20, the order, among other things, directs federal employees and federal agencies to enforce laws governing sex-based rights, protections, opportunities and accommodations to protect men and women as biologically distinct sexes. It also requires officials to remove all statements, policies, regulations, forms, communications and other internal and external messages promoting gender ideology.

To carry out the order, Acting Chair Lucas:

• Made defending biological and binary definitions of sex and related rights an agency priority for compliance, investigations and litigation.
• Removed the agency’s “pronoun app,” which enabled EEOC employees to display their pronouns in internal and external communications.
• Removed the “X” gender marker and the prefix “Mx.” as options when filing a discrimination charge.
• Commenced a review of the content of the EEOC’s “Know Your Rights” poster, which discusses discrimination related to sexual orientation and gender identity.
• Removed materials “promoting gender ideology” from the EEOC’s internal and external websites and documents.
• Added a banner to publicly accessible items that cannot be immediately removed or revised explaining why they “have not yet been brought into compliance.”

Acting Chair Lucas signaled that she cannot unilaterally remove or modify certain gender identity-related documents subject to the order because doing so requires a majority vote of the full commission. These documents include those that have been previously approved by a majority of the commission, such as the EEOC’s:

• Enforcement Guidance on Harassment in the Workplace (issued by a 3-2 vote in 2024).
• Strategic Plan 2022-2026 (issued by a 3-2 vote in 2023).
• Strategic Enforcement Plan Fiscal Years 2024-2028 (issued by a 3-2 vote in 2023).

Employers should note that despite these changes, the U.S. Supreme Court’s 2020 Bostock v. Clayton County decision is still in effect. It held that Title VII’s prohibition on sex discrimination and sexual harassment extends to discrimination and harassment on the basis of sexual orientation and gender identity. Congress has also not changed Title VII. This means protected individuals may presumably still file charges related to discrimination and harassment based on sexual orientation and gender.

EEOC Compliance Enforcement

Following the removal of Commissioners Burrows and Samuels, the EEOC lacks a quorum to, among other things, remove prior approved guidance and strategic enforcement plans. Only Commissioners Lucas and Kotagal remain of the five-member commission. Without at least three sitting commissioners, the EEOC will continue to lack a quorum until new commissioners are appointed and confirmed. With no quorum, the commission may be unable to:

• Revoke old guidance or institute new guidance
• Revise or implement regulations
• Change existing EEO-1 requirements
• Initiate certain types of new litigation, such as pattern and practice cases and systemic litigation

Changes to EEOC leadership so far in 2025:

• Jan. 21 – Commissioner Andrea Lucas was named acting chair.
• Jan. 27 – EEOC General Counsel Karla Gilbride was removed.
• Jan. 27 – Commissioners Burrows and Samuels were removed, leaving the commission short one commissioner required for a quorum.
• Jan. 28 – Acting Chair Lucas issued a statement announcing the agency’s return to “its mission of protecting women” in the workplace and the removal of the “gender identity agenda.”
• Feb. 4 – Andrew B. Rogers was named acting general counsel.

Acting Chair Lucas’ term is up in July, so there could be even more leadership changes in the coming months.

Contact Regan Canfill or any member of the Phelps labor and employment team with questions or for advice and guidance.