The new presidential administration has made unprecedented changes at the Equal Employment Opportunity Commission and the National Labor Relations Board.
On Jan. 27, President Donald Trump removed Equal Employment Opportunity Commission (EEOC) Commissioners Charlotte A. Burrows, whose term was set to expire July 1, 2028, and Jocelyn Samuels, whose term was set to expire July 1, 2026. It’s the first time a president has removed an EEOC commissioner without cause prior to the expiration of their five-year term. Ninety years ago, the Supreme Court ruled presidents lack the power to fire commissioners of independent agencies.
With only two members left, the commission lacks a quorum. Without a quorum, it cannot initiate formal rule-making and cannot issue, modify or revoke formal guidance, adopt rules, direct staff to take certain actions or issue rulings in discrimination cases brought by federal employees.
On Jan. 28, Acting Chair Andrea Lucas issued a statement announcing the EEOC will be rolling back former President Joe Biden’s “gender identity agenda” consistent with Trump’s executive order, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” Lucas acknowledges until there is a quorum she cannot unilaterally remove or modify “gender identity” portions of the EEOC’s harassment guidance.
A decision to rescind the gender identity portion of the guidance could put the commission at odds with the 2020 Bostock v. Clayton County decision. The decision recognized that Title VII, the anti-discrimination law, protects employees from discrimination on the basis of sexual orientation and gender identity.
Lucas also stated one of her priorities is to defend the biological and binary reality of sex. She also removed the agency’s “pronoun app,” ended the “X” gender marker during the intake process, removed “Mx” from the list of prefix options and removed materials promoting “gender ideology” from the EEOC’s internal and external website.
In addition, she withdrew EEOC guidance that helps employees and employers understand their rights and obligations pertaining to LGTBQ+ worker protections, including references to the Bostock case. Lucas also removed previously available content on the EEOC website raising concerns about how artificial intelligence tools can result in unlawful employment discrimination.
At the National Labor Relations Board (NLRB) — the agency that makes administrative rulings on unfair labor practices, holds union elections and issues remedies for statutory violations — Trump fired General Counsel Jennifer Abruzzo, Acting General Counsel Jessica Rutter and Gwynne Wilcox, the first Black woman to serve on the board.
Wilcox, whose term runs through 2028, filed a lawsuit concerning her unprecedented firing, alleging her removal violated Section 3(a) of the National Labor Relations Act. That section states a board member can only be fired for neglect of duty or malfeasance and only after notice and a hearing. The board now lacks a quorum.
If administrative law judges’ decisions are appealed, the lack of a board quorum brings the process to a halt and stalls election petitions. The NLRB has long been in Elon Musk’s crosshairs. Musk’s SpaceX joined Amazon in challenging the constitutionality of the NLRB in federal court last year.
Fortunately in California, the California Civil Rights Department protects LGBTQ+ workers from discrimination, but there is no state counterpart to the NLRB for private sector employees. Although the NLRB has traditionally been composed of five members with three members from the president’s party and two from the opposition, there is no mandated bipartisanship requirement.
In the near future we can expect to see an avalanche of employer favorable decisions from the GOP majority-controlled board.
San José Spotlight columnist Ruth Silver Taube is supervising attorney of the Workers’ Rights Clinic at the Katharine & George Alexander Community Law Center, supervising attorney of the Santa Clara County’s Office of Labor Standards Enforcement Legal Advice Line and a member of Santa Clara County’s Fair Workplace Collaborative. Her columns appear every second Thursday of the month. Contact her at [email protected].
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