How Will the EEOC Change Under the Trump Administration?

by Foley & Lardner LLP

Employers, human resource professionals, and employment attorneys all have the same burning question on their minds – what is the Trump administration’s Equal Employment Opportunity Commission (EEOC), with newly appointed Acting Chair Victoria A. Lipnic, going to do?

An important part of this conversation is understanding the ways in which the EEOC is able to wield its agency power. In other words, some EEOC actions and regulations are directly attributable to the agency itself, while other EEOC actions find support in our existing laws and their judicial interpretation.

Two events on the horizon help illustrate this difference. The first is the Employer Information Report EEO-1, bringing changes to large employers’ reporting requirements, beginning next year. The second involves the matter of whether Title VII’s discrimination provisions apply to claims alleging sexual orientation or gender identity, an issue working its way through several federal courts with key decisions expected soon.

Changes to EEO-1 reporting, first proposed over a year ago and since adopted, require most federal contractors and large employers to provide data on pay ranges and hours worked alongside demographic information. This new data must be reported starting March 31, 2018. Methods of collecting data are administrative requirements of the EEOC alone, and are thus the type of regulations most susceptible to change under a new administration. The majority of EEOC commissioners are still Democrats—which means that immediate changes to this requirement may not occur. However, March of 2018 is a long way off and as Trump appointees shift the agency balance, there is ample time for reworking matters like reporting requirements, which flow from the EEOC’s own regulatory actions.

In contrast, determining the applicability of Title VII’s protections to sexual orientation and gender identity is a question currently before several courts. The outcome of these cases are not as susceptible to changes by the EEOC under a new administration. For example, the Seventh Circuit Court of Appeals (covering Illinois, Indiana, and Wisconsin) is currently rehearing a case determining whether or not Title VII covers sexual orientation discrimination. Unlike an EEOC regulation or interpretation, a federal circuit court ruling that sexual orientation is covered by Title VII will make that the law of the land in the states of that federal circuit, unless and until the Supreme Court rules otherwise, or the language of Title VII itself is changed. The EEOC itself cannot take action to change any such court ruling.

To summarize the distinction, the EEOC can eliminate certain reporting requirements just as easily as the EEOC can implement them. In contrast, the EEOC will have limited power to make changes if a court holds that our laws as currently written apply to sexual orientation discrimination.

The two examples above illustrate the difficulty in predicting how the EEOC may change under a new administration. Regulatory burdens have the potential to decrease, but may be accompanied by a judicially-driven expansion of employee protections. Additionally, while the courts may conclude that Title VII covers sexual orientation and gender identity, the EEOC still has the power to limit allocation of resources to large systemic investigations on matters like sexual orientation discrimination. However, if court holdings expand the scope of Title VII protections, individual employee lawsuits are likely to follow, irrespective of whether or not the EEOC takes action.

In summary, employers should avoid making assumptions regarding the impact of a new administration on the EEOC. It is not a cabinet-level agency and its actions are largely determined by the votes of its bipartisan commissioners. Therefore, expect EEOC changes to occur at a slower pace than other administrative bodies, like the National Labor Relations Board (NLRB). Employers are encouraged to stay in communication with legal counsel in order to navigate this changing landscape.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley & Lardner LLP | Attorney Advertising

Written by:

Foley & Lardner LLP

Foley & Lardner LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.