After the unprecedented firing of an NLRB member, President Trump took a similarly unprecedented step and terminated Democratic EEOC Commissioners Jocelyn Samuels and Charlotte Burrows, along with General Counsel Karla Gilbride. Similar to the NLRB, these firings are likely to intensify partisan regulatory whiplash.
Another first: While President Biden took the then-unprecedented step of firing the EEOC’s General Counsel on his first day in office, no President has ever fired sitting EEOC Commissioners, until now.
Is this legal? Unlike guardrails limiting the firing of NLRB members, there is no statutory language that explicitly insulates members of the EEOC from being fired.
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Agency positions requiring Senate confirmation have traditionally been considered protected from the President’s removal power except for cause, but those protections have been chipped away over the years by the Supreme Court.
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It is likely that the current Supreme Court would uphold President Trump’s authority to fire the EEOC Commissioners given the absence of statutory removal protections.
Anti-DEI agenda accelerated: The terminations mean that the Trump administration are likely to have a Republican majority at the EEOC as quickly as they can nominate and confirm candidates – sometime this spring. Prior to firing Samuels and Burrows, Democrats would have retained a majority through 2026.
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Employers can expect “unlawful DEI practices” (currently undefined) to be a major EEOC enforcement initiative as part of the administration’s focus on unraveling DEI.
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The EEOC will likely issue guidance on what it considers to be “unlawful DEI practices.”
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Reminder: The EEOC itself cannot change the law – only legislation through Congress or a judicial decision can change legal obligations under Title VII. Any guidance issued by the EEOC would be non-binding, but would inform their enforcement strategy and actions.
The bottom line: Until new Commissioners are nominated and confirmed, the EEOC will be unable to initiate major litigation or rulemaking, although the General Counsel is empowered to conduct routine investigations and litigation work on their own. Even with a quorum, legal challenges to the terminations could freeze or negate EEOC actions until the litigation is resolved.
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Employers that are currently the subject of EEOC litigation or investigations can expect those processes to continue through the General Counsel and lower-level staff.
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The General Counsel and staff can continue to open new investigations, but the decision to actually file any major litigation in federal court requires Commission approval, which cannot happen without a quorum.
