1 | EEOC-INITIATED LITIGATION: 2026 EDITION ©2026 Seyfarth Shaw LLP PART I: Agency Composition A. Equal Employment Opportunity Commission Composition and Background In FY 2025, the EEOC entered a period of sweeping change that reshaped its priorities and approach. Following the inauguration of President Donald Trump for his second term, the new administration took a series of swift actions that had a significant impact on EEOC leadership and enforcement. First, President Trump elevated Commissioner Andrea R. Lucas to Acting Chair, a standard exercise of executive prerogative. Next, he terminated EEOC General Counsel Karla Gilbride, following precedent set by President Biden, who had terminated the previous EEOC General Counsel, a Trump nominee, shortly after taking office. Then in an action without precedent, President Trump fired two Democratic Commissioners, Charlotte Burrows and Jocelyn Samuels. Under Title VII of the Civil Rights Act of 1964, which created the EEOC, Commissioners serve for fixed five-year terms, and there is no provision to remove a Commissioner “for cause.” The unprecedented firings ended a Democratic majority that was poised to continue until at least mid-2026 and left the Commission with only two members—Acting Chair Lucas and Democratic Commissioner Kalpana Kotagal. With only two Commissioners for most of 2025, the EEOC lacked a quorum, limiting its authority to act in furtherance of its statutory duties and to pursue the priorities set by the Trump Administration and Acting Chair Lucas. For example, without a quorum, the Acting Chair may revoke or revise technical assistance documents 1 issued under the authority of prior Chairs, but cannot rescind formal guidance previously issued with majority approval from a validly constituted quorum of Commissioners, such as the EEOC’s Enforcement Guidance on Harassment in the Workplace 2 or Pregnant Workers Fairness Act (PWFA) rules.3 Similarly, during 2025 litigation was curtailed without a quorum but not halted. The rules in place throughout 2025 required the Commission itself to authorize the initiation of certain new lawsuits, while the EEOC General Counsel was responsible for “conducting” EEOC litigation. Since the termination of General Counsel Gilbride, the EEOC’s General Counsel role has been filled on a temporary basis pursuant to the Federal Vacancies Reform Act. Regular litigation and investigations are conducted by EEOC career staff, who continue the day-to-day activity of the agency unless and until further action is taken. Under a delegation of litigation authority adopted in January 2021 and in effect until January 2026, some categories of litigation required approval by a majority of Commissioners while others were left to the discretion of the General Counsel.4 Under this framework, Commissioners were required to vote to approve the following categories of litigation: recommendations for the Commission to file an amicus brief; cases alleging systemic discrimination or “pattern-or-practice” discrimination; cases requiring major expenditure of agency resources; cases taking positions contrary to Circuit precedent; and cases presenting novel or unsettled legal issues likely to generate public controversy. All other litigation could be brought by the General Counsel without prior approval. The absence of a quorum for most of 2025 is reflected in the EEOC’s litigation: just 93 lawsuits were filed in FY 2025 (a record low), and the vast majority of them (about 75%) were filed on behalf of just one individual and without seeking to change the law. 1 U.S. Equal Employment Opportunity Commission, EEOC Guidance, https://www.eeoc.gov/eeoc-guidance. 2 U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Harassment in the Workplace, https://web.archive.org/ web/20260120031142/https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace. This guidance was revoked on January 22, 2026, after a quorum was restored. U.S. Equal Employment Opportunity Commission, (Jan. 23, 2026), https://www.eeoc.gov/newsroom/eeoccommission-votes-rescind-2024-harassment-guidance. 3 29 CFR 1636, https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XIV/part-1636. 4 U.S. Equal Employment Opportunity Commission, Resolution Concerning the Commission’s Authority to Commence or Intervene in Litigation and the Commission’s Interest in Information Concerning Appeals (Jan. 13, 2021), https://www.eeoc.gov/resolution-concerning-commissions-authoritycommence-or-intervene-litigation-and-commissions-0. On January 22, 2026, the Commission approved a new resolution that changed the delegation authority. U.S. Equal Employment Opportunity Commission, Resolution Concerning the Commission’s Authority to Commence or Intervene in Litigation and the Commission’s Interest in Information Concerning Appeals (Jan. 22, 2026), https://www.eeoc.gov/resolution-concerningcommissions-authority-commence-or-intervene-litigation.
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