The EEOC’s Strategic Retreat: How 2025 Policy Reversals Are Reshaping Employment Litigation

By Matthew M. McCluer & Cranay D. Murphy

The Equal Employment Opportunity Commission (EEOC) has recently undergone the most dramatic transformation in its 60-year history, fundamentally altering the federal employment discrimination enforcement landscape through unprecedented structural changes and sweeping policy reversals. For employment attorneys and employers navigating this new terrain, understanding these shifts is critical to developing effective litigation strategies and compliance frameworks.

Constitutional Crisis Creates Operational Uncertainty

Commissioner Firings and Legal Challenge

On January 28, 2025, President Trump made an unprecedented move by firing sitting EEOC Commissioners Charlotte Burrows and Jocelyn Samuels, both Democratic appointees, along with General Counsel Karla Gilbride, a Biden appointee. This action represents the first time in EEOC history that a president has dismissed active commissioners before the end of their statutory terms.

Former commissioner Samuels filed a lawsuit in April 2025 challenging her dismissal, arguing her removal was a violation of the Civil Rights Act that created the agency to be an independent and bipartisan protector of the rights of workers. The lawsuit, filed by Democracy Forward in U.S. District Court in the District of Columbia, argues that Congress did not grant the president authority to remove EEOC commissioners at will and that commissioners should serve staggered terms to ensure continuity and insulation from political pressure.

Impact on EEOC Operations

The immediate consequence is operational paralysis at the policy level. With only two commissioners remaining—Acting Chair Andrea Lucas (Republican) and Commissioner Kalpana Kotagal (Democrat)—the EEOC no longer has a quorum necessary to conduct significant business, including rulemaking, issuing new policies, or rescinding guidance documents. However, the agency remains operational for core functions, with investigations, charge processing, and notices of right to sue continuing unimpacted.

Critically, for ongoing litigation, the EEOC can continue filing lawsuits under existing 2021 delegated authority. This provides limited authority for the filing of lawsuits by the EEOC General Counsel after providing five days’ notice to commissioners before filing suit. This means employers with pending cases should not expect automatic dismissals based solely on the commission’s structural disruption.

Parallel Developments at the NLRB

It is also notable that the day prior to these three headline-grabbing firings, President Trump terminated Jennifer Abruzzo, the National Labor Relations Board’s General Counsel, as well as a democratic Board Member, Gwynne Wilcox. This similarly left the NLRB short of the three-member quorum required to adjudicate even the most routine labor disputes. Former Board member Wilcox has initiated legal proceedings challenging her termination without cause as violative of prior Supreme Court precedent.

The Disparate Impact Earthquake

Executive Order 14281: Restoring Meritocracy

The most significant substantive change came through Executive Order 14281, issued April 23, 2025 and titled “Restoring Equality of Opportunity and Meritocracy.” The order declares a sweeping new federal policy to eliminate governmental enforcement of disparate-impact liability in all contexts to the maximum degree possible. This directive represents a profound departure from decades of civil rights enforcement precedent. The order directs all federal agencies, including the EEOC and Department of Justice, to deprioritize any enforcement and litigation regarding disparate impact claims. It also requires agency heads to assess all existing regulations, guidance, rules, or orders that impose disparate-impact liability.

Immediate Enforcement Implications

The practical implications are immediate and far-reaching. The order requires the Attorney General and EEOC Chair to assess all pending investigations, civil suits, or positions taken in ongoing matters that rely on a theory of disparate-impact liability. Once identified, agencies must take appropriate action consistent with the order’s policy. This could include dismissing existing litigation in whole or in part, withdrawing amicus briefs, curtailing or ending pending investigations, and modifying or halting conciliation agreements and consent decrees.

Private Litigants’ Rights + Agency Reporting and Deadlines

It is important to remember that private litigants retain full rights to pursue disparate impact claims under Title VII regardless of federal enforcement priorities. Disparate impact liability is a viable theory of discrimination under Title VII, and while plaintiffs must bring a charge alleging such discrimination to the EEOC before proceeding with litigation, they ultimately can bring a private suit in federal court without EEOC involvement.

By specific deadlines beginning in May 2025, the Attorney General and EEOC were required to (1) submit reports to the President identifying all existing regulations that impose disparate-impact liability, (2) assess all pending matters relying on such theories, and (3) review existing consent judgments and permanent injunctions for potential legal action. However, there has been virtually no other information released with respect to these reports, such as whether they were submitted by the deadline or what specific actions have been taken or are planned for the future.

OCC’s Implementation

On July 14, 2025, the Office of the Comptroller of the Currency (OCC) announced the removal of references to disparate impact liability from the fair lending provisions in the agency’s handbook and instructed its examiners to cease examining banks for disparate impact liability by refraining from requesting or reviewing any bank’s internal disparate impact analysis, assessment processes, or procedures. However, OCC maintains that it will continue to conduct fair lending risk assessments and review banks’ activity for evidence of disparate treatment, that is, individual, case-by-case incidents of discrimination.

Potential Legal Challenges

It is worth noting that over 220 lawsuits have been filed challenging various other executive orders issued since President Trump took office, many resulting in preliminary injunctions blocking all or parts of these actions. However, it remains unclear whether Executive Order 14281 will garner a legal challenge. In the short term, it is anticipated that other agencies will chart a similar path to OCC, undertaking compliance actions to align the agency’s priorities with those of the White House.

Pattern and Practice Cases: A Different Story

Distinguishing Pattern or Practice from Disparate Impact

While the sea change in disparate impact policy continues to take form, employment attorneys should understand an important distinction that may preserve significant EEOC enforcement capabilities. Most of the EEOC’s systemic discrimination cases have historically been pattern-or-practice discrimination cases, not disparate impact cases.

Pattern or practice cases, authorized under Section 707(a) of the Civil Rights Act, require showing that unlawful discrimination has been a regular procedure or policy followed by an employer. Unlike disparate impact cases that typically involve facially-neutral policies that have discriminatory effects (even unintended ones) on protected categories of individuals, pattern-or-practice cases utilize a disparate treatment theory of liability requiring the EEOC to demonstrate systematic, intentional discrimination through evidence of regular discriminatory practices.

Continuing Enforcement Pathways

This distinction suggests that while the EEOC may withdraw from statistical disparity-based enforcement, its ability to pursue large-scale class action and systemic cases based on intentional discrimination patterns remains largely intact.

Looking Forward

The EEOC’s transformation represents part of President Trump’s broader reshaping of the federal government’s approach to DEI and labor issues. Constitutional challenges to the commissioner firings, combined with ongoing policy implementation and potential legal challenges to Executive Order 14281, suggest there will be continued uncertainty in this arena as we enter 2026.

Nevertheless, the employment law landscape has fundamentally shifted, requiring practitioners and employers to recalibrate strategies for a new enforcement environment. While federal scrutiny may decrease in some areas, the underlying legal frameworks remain intact, and private enforcement may expand to fill gaps. Success in this new landscape will require understanding not just what has changed, but what endures in the complex web of employment discrimination law.