EEOC Quorum Restored: Five Critical Enforcement Shifts for Employers

Commissioner Brittany Panuccio’s confirmation on October 7, 2025 restored the EEOC’s quorum, removing the constraints that limited Chair Andrea Lucas during the eight-month period when the Commission operated with just two members. The Commission can now formally adopt new guidance, rescind prior guidance and policies, authorize litigation, approve amicus briefs, and modify its Strategic Enforcement Plan —actions that were not possible without three commissioners.

Based on Chair Lucas’ stated priorities and enforcement actions already underway, employers face 5 critical enforcement shifts.

1. DEI Programs: From Best Practice to Legal Risk

   What’s Changing? The Commission has elevated workplace DEI challenges to one of its top enforcement priorities. In March 2025, the EEOC and Department of Justice jointly issued technical assistance emphasizing that Title VII contains no exception for diversity interests or DEI considerations in its prohibition of discrimination based on race, sex, or other protected characteristics. Likewise, on July 29, 2025, the DOJ issued a guidance memo interpreting federal antidiscrimination law as applied to federal funding recipients under Title VI (and similarly applicable under Title VII). With restored quorum, the Commission is expected to formalize guidance establishing that voluntary diversity efforts involving preferential treatment violate Title VII regardless of benign intent.

   Active Investigations. The Commission has already taken aggressive investigative steps signaling systemic enforcement intentions.

   • On March 17, 2025, Chair Lucas sent detailed information requests to 20 law firms seeking extensive data on diversity fellowships, summer associate programs, compensation structures, partnership decisions, employee resource groups, client diversity requirements, and performance metrics tied to diversity goals. The Commission established a dedicated whistleblower email address for reporting potentially unlawful DEI practices at law firms.
   • On May 13, 2025, the EEOC filed a subpoena enforcement action against Mauser Packaging Solutions, investigating allegations that the company made requests to staffing firms to provide workers or candidates based on demographic characteristics matching existing facility demographics, effectively segregating facilities by race, national origin, or sex. Chair Lucas emphasized that making staffing requests based on demographic characteristics is almost always illegal with no exception for racially motivated decisions driven by business concerns, and that the Commission is concerned employers can use this as a way to exclude American workers in favor of foreign-born workers perceived as easier to exploit.
   • On November 20, 2025, the Commission filed a subpoena enforcement action against Northwestern Mutual following a charge alleging the company enhanced its DEI policy by focusing on providing additional support and opportunities for women and people of color and adopted mandatory performance metrics to promote these groups.

   What’s Likely To Be Challenged? Recent actions indicate the Commission may pursue test cases challenging:

   • Diversity fellowships, scholarships, or development programs with race- or sex-based eligibility or plus-factor criteria
   • Partnership, promotion, or advancement decisions incorporating diversity factors or considerations
   • Performance evaluations or compensation tied to diversity metrics or outcomes
   • Employee resource/affinity groups offering employment benefits or advantages in advancement, mentorship, access to leadership and other formal and informal opportunities
   • Supplier diversity or vendor selection considering ownership demographics
   • Recruiting strategies targeting specific demographic groups or partnering with organizations serving particular demographics
   • Training programs addressing unconscious bias, systemic racism, racial privilege, or related concepts that may compel viewpoint adoption

   Expected Formal Guidance. The EEOC will likely formalize guidance establishing that:

   • Voluntary diversity efforts cannot include preferences, quotas, or set-asides based on race or sex regardless of benign intent or business justification
   • Demographic considerations in hiring, promotion, or compensation decisions violate Title VII
   • Performance metrics or incentive compensation tied to diversity outcomes create Title VII liability
   • Employee programs with race- or sex-based eligibility or plus-factor criteria constitute discrimination
   • Vendor selection or supplier diversity programs considering ownership demographics violate Title VII

   Pattern-or-Practice Litigation Anticipated. The Commission appears to be building investigative records for potential systemic enforcement actions against employers with documented diversity fellowship programs, partnership diversity initiatives, or compensation tied to diversity metrics; universities with diversity-focused hiring criteria, required diversity statements, or demographic-based faculty development programs; and major corporations with demographic-based programs, set-asides, or quotas in promotion or development programs.

   Practical Takeaway. Employers with DEI programs involving demographic-based decision-making face heightened investigation and litigation risk and should conduct comprehensive legal reviews immediately, recognizing that practices previously considered best practices may now constitute Title VII violations under the EEOC’s interpretation.

2. Religious Accommodation

   What’s Changing. The Supreme Court’s 2023 decision in Groff v. DeJoy replaced the de minimis burden standard with a requirement that employers demonstrate substantial increased costs to deny religious accommodations. The Trump administration has issued guidance emphasizing a generous approach to religious accommodations, and the EEOC has filed 11 religious discrimination lawsuits since April 2025, demonstrating aggressive enforcement even during the quorum absence.

   Record Settlements and Enforcement Actions.

   • Columbia University paid $21 million in July 2025 to resolve allegations of workplace antisemitism — described by the Commission as the largest EEOC public settlement in nearly 20 years for any form of discrimination or harassment. In announcing the settlement, Chair Lucas stated that many universities have actually become a haven for antisemitic conduct and emphasized the Commission’s commitment to partnering with the Department of Justice to address antisemitism on campus workplaces.
   • On November 18, 2025, the Commission filed a subpoena enforcement action against the University of Pennsylvania seeking information relating to potential witnesses and victims of alleged antisemitic harassment on campus. Chair Lucas stated the EEOC remains steadfast in its commitment to combatting workplace antisemitism, and that an employer’s obstruction of efforts to identify witnesses and victims undermines the EEOC’s ability to investigate harassment.
   • Additional enforcement includes a settlement with Marriott-affiliated timeshare companies for failure to accommodate Sabbath observance, forcing an employee to choose between work and religious practice and leading to resignation. As of May 2025, the Commission received over 10,000 religious accommodation charges and 6,000 disability accommodation charges related to COVID-19 vaccine mandates, recovering more than $54 million to date.

   What “Substantial Increased Costs” Means in Practice. Trump administration Office of Personnel Management guidance for the federal workforce makes clear that the following factors are NOT considered substantial increased costs justifying religious accommodation denial:

   • Coworker inconvenience, dislike, or preference regarding religious practice
   • Patient preference in healthcare settings
   • Minor scheduling complications or shift adjustments
   • Hypothetical concerns about team dynamics or morale
   • General assertions about operational needs without specific cost documentation

   The July 16, 2025 Office of Personnel Management guidance specifically encourages telework arrangements for religious observances, religious compensatory time off, flexible work schedules, and interactive processes requiring good-faith exploration of accommodations. A second OPM memorandum dated July 28, 2025, emphasizes that the federal workforce should be a welcoming place for employees who practice a religious faith and that Title VII gives religious practices favored treatment. While OPM guidance applies to federal employment, it signals the administration’s interpretation of Title VII’s religious protections across all sectors.

   Practical Takeaway. The Groff standard significantly increases employer accommodation obligations; coworker inconvenience and patient preference are insufficient grounds for denial, and employers must document actual substantial operational or financial costs to justify accommodation refusal.

3. National Origin Discrimination

   What’s Changing. Chair Lucas has announced enhanced enforcement focus on national origin discrimination, with the Commission partnering with the Department of Labor in “Project Firewall” to combat what Chair Lucas describes as large-scale unlawful anti-American discrimination.

   On November 19, 2025, the Commission released educational materials stating that unlawful bias against American workers in violation of Title VII is a large-scale problem in multiple industries nationwide, with many employers having policies and practices preferring illegal aliens, migrant workers, or non-immigrant guest workers over American workers. The materials emphasize that nothing justifies illegal national origin discrimination — whether rooted in cost of labor, customer preferences, or stereotypes about productivity. This represents a fundamental shift in enforcement priorities, with the Commission explicitly stating that business justifications previously considered legitimate no longer shield employers from liability.

   Two Enforcement Categories. The Commission’s enforcement is expected to address two categories of national origin discrimination.

   1. Preferences for Other National Origin Groups Over American Workers. This includes job advertisements expressing preferences for visa holders (such as “H-1B preferred” or “H-1B only” language), application processes that are more difficult for certain national origin groups, disparate treatment in termination or advancement based on national origin, and harassment based on national origin. The Commission emphasizes that customer or client preference, lower cost of labor, and beliefs that workers from certain national origin groups are more productive do not justify national origin discrimination.
   2. Employment-Based Immigration Decisions. The Commission is expected to examine whether employment decisions involving visa sponsorship are motivated by factors beyond legitimate qualifications and business needs — for example, whether employers prefer visa-sponsored workers based on perceived cost savings, employment flexibility, or reduced likelihood of job mobility rather than purely merit-based criteria. This represents a potentially significant expansion of national origin enforcement beyond obvious preferential treatment to examine economic motivations underlying immigration sponsorship decisions.

   Active Enforcement.

   • On June 1, 2025, the EEOC issued a Commissioner’s Charge against Vallarta Supermarkets, alleging failure to recruit, hire, or promote non-Hispanic individuals because of their race and national origin, followed by a July 3, 2025 subpoena enforcement action seeking extensive demographic data. Chair Lucas stated the agency is seeking to determine whether Vallarta engaged in unlawful hiring practices by excluding non-Hispanic individuals from employment despite operating in areas with demographically diverse populations.
   • The EEOC secured $1.4 million against LeoPalace, a major hotel and resort in Guam, on behalf of non-Japanese employees, including multiple former employees of American national origin.
   • Since 2019, the Commission has recovered almost $7 million in foreign preference national origin discrimination cases, with Chair Lucas indicating this represents only initial enforcement in what the agency views as a widespread problem.

   Technology Sector Focus. The Commission’s national origin enforcement suggests particular technology sector scrutiny given sector reliance on H-1B workers and employment-based immigration. The Commission appears to be positioning itself to argue that job advertisements expressing H-1B visa preferences constitute national origin discrimination, recruiting practices primarily targeting foreign workers violate Title VII, compensation disparities based on visa status create liability, and algorithmic hiring systems producing national origin preferences violate anti-discrimination laws.

   The Department of Labor partnership suggests coordinated enforcement of discrimination and immigration compliance, extending beyond traditional discrimination inquiries to examine workforce composition, recruiting practices, and relationships with staffing agencies in industries with significant foreign worker populations. Employers should anticipate that investigations may involve multiple federal agencies examining overlapping issues of discrimination, immigration compliance, child labor protections, and wage and hour practices.

   Practical Takeaway. Companies with significant H-1B workforces should conduct immediate reviews of recruiting materials, visa sponsorship criteria, and compensation parity, recognizing that preferences for visa-sponsored workers based on perceived cost or flexibility advantages may constitute national origin discrimination under the Commission’s interpretation.

4. Sexual Orientation and Gender Identity

   What’s Changing. In April 2024, the Commission updated its harassment guidance to include sections addressing sexual orientation and gender identity discrimination, providing that unlawful harassment includes repeated and intentional use of a name or pronoun inconsistent with an individual’s known gender identity (misgendering) and denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity. Chair Lucas voted against the 2024 guidance and has stated publicly that she interprets SCOTUS’s Bostock v. Clayton County decision as applying to adverse employment actions such as termination, failure to hire, and failure to promote, but not extending to harassment claims or workplace facility access based on gender identity. In a July 28, 2025 statement, Chair Lucas characterized the 2024 guidance as fundamentally flawed because it ignores biological reality, effectively eliminates single-sex workplace facilities, and impinges on employees’ rights to freedom of speech and belief.

   Actions Already Taken. During the quorum absence, Chair Lucas ordered the removal of materials that promote gender ideology from EEOC resources and directed the agency to withdraw litigation involving claims of gender identity discrimination. In her June 2025 Senate confirmation hearing, Chair Lucas acknowledged that she directed the dismissal of seven gender identity discrimination lawsuits, stating it was impossible to both comply with presidential executive orders declaring recognition of only two biological, immutable sexes and zealously defend the workers on whose behalf cases had been brought. She affirmed that the Supreme Court’s Bostock decision held that discriminating against someone on the basis of sex included firing an individual who is transgender or based on their sexual orientation but maintained that the decision’s scope does not extend to harassment or workplace facility access.

   Supreme Court Context. On November 6, 2025, the Supreme Court majority sided with the Trump administration to ban use of “X” designation on new passports in Trump v. Orr, a “shadow docket decision,” finding the government is likely to prevail on the merits. The Court stated that displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth — in both cases, the government is merely attesting to a historical fact without subjecting anyone to differential treatment. The Court said that the challengers failed to establish that the government’s choice to display biological sex lacked any purpose other than a bare desire to harm a politically unpopular group. The Supreme Court’s emphasis on historical fact and biological sex aligns with the administration’s stated policy of restoring biological truth to the federal government and Chair Lucas’s references to defending the biological and binary reality of sex. While Trump v. Orr addresses passport designations rather than employment law directly, the Court’s reasoning regarding biological sex as historical fact may inform the reconstituted Commission’s interpretation of Title VII’s sex discrimination provisions and its approach to workplace policies involving gender identity.

   Expected Policy Changes. With restored quorum, the Commission may formally rescind portions of the 2024 harassment guidance relating to sexual orientation and gender identity, issue clarifying guidance on the Commission’s interpretation of Bostock’s scope, and address questions regarding sex-segregated workplace facilities, dress codes, and preferred pronoun usage policies. The EEOC’s revised guidance will likely establish that bathroom access, locker room policies, and similar sex-segregated facility questions are governed by biological sex rather than gender identity, and that employees’ use of preferred names or pronouns is not protected under Title VII.

   The Compliance Challenge. Employers face potential enforcement risk from both the Commission’s stated positions and private litigation applying broader Bostock interpretations adopted by several federal courts that have extended Title VII protections to harassment (including misgendering and refusal to allow preferred bathrooms/locker rooms). Employers in states with robust LGBTQ+ protections face particular challenges navigating divergent federal and state requirements. State laws may require protections and accommodations that exceed the EEOC’s view, including bathroom access consistent with gender identity, use of preferred pronouns, and broader harassment protections. Employers should carefully document compliance rationales when federal and state requirements appear to conflict.

   Practical Takeaway. While Bostock extends Title VII protections against adverse employment actions based on sexual orientation and transgender status, significant uncertainty remains regarding harassment claims and sex-segregated facility access policies pending formal Commission guidance; multi-state employers face particular complexity navigating divergent federal and state requirements.

5. Strategic Enforcement Plan Updates

   What’s Changing. The current 2024-2028 Strategic Enforcement Plan, which was adopted in 2023 under the prior administration, emphasizes protecting vulnerable and underserved communities, eliminating barriers in recruitment and hiring, and preserving access to the legal system. Chair Lucas dissented to the Plan’s adoption. With restored quorum, the Commission is expected to formally modify this Plan to reflect administration priorities.

   1. Deprioritizing Disparate Impact An internal EEOC memorandum dated September 15, 2025, directed discharge of disparate impact complaints by September 30th, consistent with Trump Executive Order “Restoring Equality of Opportunity and Meritocracy.” The Commission is anticipated to reduce emphasis on disparate impact investigations and reorient enforcement toward DEI programs alleged to disadvantage majority groups, expanded religious discrimination and failure to accommodate enforcement, and enhanced American worker national origin discrimination enforcement.
      
      Private Litigation. While the EEOC may deprioritize disparate impact enforcement, disparate impact remains a valid theory of liability under Title VII. The Supreme Court upheld disparate impact theory in Griggs v. Duke Power Co. (1971) and reaffirmed the principle in Ricci v. DeStefano (2009). Private litigants may continue bringing disparate impact claims regardless of the Commission’s enforcement position. Additionally, many state fair employment practice laws recognize disparate impact claims. Therefore, employers should not interpret EEOC de-prioritization as eliminating this liability exposure. Expect private plaintiffs, class action attorneys, and state enforcement to continue pursuing disparate impact theories, particularly in jurisdictions with favorable precedent or fee-shifting provisions encouraging such litigation. In fact, the Commission’s de-prioritization may create incentives for private enforcement to fill the perceived enforcement gap.
      
      EEO-1 Compliance Tension. Title VII requires employers with 100 or more employees to file annual EEO-1 demographic data reports. Chair Lucas has cautioned that employers may not use information about their employees’ race, ethnicity, or sex — including demographic data collected and reported in EEO-1 Component 1 reports — to facilitate unlawful employment discrimination, emphasizing there is no diversity exception to Title VII’s requirements. This creates compliance tension: employers must continue collecting and reporting EEO-1 data as statutorily required, but Chair Lucas’s interpretation suggests using this data to inform diversity program design or demographic goal-setting may constitute unlawful discrimination.

      Practical Takeaway. EEOC de-prioritization of disparate impact does not eliminate such claims; private plaintiffs and state enforcement agencies will continue pursuing such claims, requiring continued adverse impact monitoring and documentation of legitimate, job-related selection criteria.

   2. Modifying Pregnant Worker Fairness Act (PWFA) Rule Chair Lucas voted against the EEOC’s April 2024 PWFA Final Rule (issued 3-2 vote). The Final Rule interpreted “pregnancy, childbirth, or related medical conditions” to include conditions “related to, affected by, or arising out of” pregnancy or childbirth — specifically including elective abortion. Chair Lucas said this construction “broadens the scope of the statute in ways that cannot be reconciled with the text.”In her dissent, Chair Lucas argued it “fundamentally errs in conflating pregnancy and childbirth accommodation with accommodation of the female sex” and “extend[ed] the new accommodation requirements to reach virtually every condition, circumstance, or procedure that relates to any aspect of the female reproductive system.” In a separate statement, Chair Lucas added that she “intends for the Commission to reconsider portions of the Final Rule that she believes are unsupported by law” once a quorum is reestablished.
      
      Chair Lucas’s position aligns with a federal district court, Louisiana v. EEOC, which in May 2025, struck down parts of the EEOC’s PWFA rule requiring employers to provide accommodations for elective abortions. That court found the EEOC exceeded its authority by including non-medically necessary abortions in “pregnancy-related conditions” and infringing on state sovereignty. As support, the court noted the timing of the PWFA’s enactment six months after the Supreme Court’s Dobbs v. Jackson Women’s Health Org. decision struck down the constitutional right to abortion — meaning that Congress was “well aware” of the impact to the availability and legality of elective abortion.

      Practical Takeaway. With the EEOC’s quorum reestablished, the EEOC will likely vote to amend or repeal portions of the PWFA Rule to narrow “related medical conditions” to exclude conditions that are not directly tied to pregnancy or childbirth — resulting in removing accommodations for menstruation, fertility treatments, and elective abortion.

   3. Litigation Activity During the quorum absence, the Commission was limited in pursuing pattern-or-practice cases, cases presenting unsettled legal questions, and amicus brief participation requiring Commission authorization. With restored quorum, the Commission now has full authority to pursue such litigation.The Commission may also seek to withdraw from or reverse positions taken in pending amicus briefs filed under the prior administration, particularly in cases involving gender identity protections, disparate impact theories, or support for diversity-conscious remedies. These position reversals may generate significant attention and signal the Commission’s interpretation of unsettled legal questions.

Conclusion

The EEOC’s restored quorum enables enforcement actions impossible during the eight-month quorum absence. Employers should act now rather than waiting for formal guidance.

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