DENVER – A variety of U.S. Equal Employment Opportunity Commission documents and policies that have been on the chopping block for months will likely meet their end soon, Commissioner Kalpana Kotagal told attendees at an American Bar Association event Thursday.
Now that the government is open and the agency has a quorum — the Senate confirmed a Trump appointee during the shutdown — the Republican majority can and will advance policy changes, said Kotagal, who joined the ABA’s annual labor and employment law conference virtually.
Among other things, EEOC’s 2024 enforcement guidance on harassment is almost certainly on its way out, given that Chair Andrea Lucas had said its rescission is a top priority. Lucas has long objected to its positions on harassment based on gender-identity — portions already struck down in court — but lacked the votes to rescind it.
Kotagal said employers can expect to see it set aside “fairly quickly.” As the commission’s lone Democrat, she said the document was meant to be a resource for both employers and employees, and “its rescission will be a real loss.”
It’s likely the Republican majority also now will seek to revise agency regulations implementing the Pregnant Workers Fairness Act, Kotagal said. A court directed the commission to do so with respect to a provision on accommodation for abortions, and Lucas has voiced objections to the rule since its promulgation.
Likewise, any commission documents that deal with disparate impact could be rescinded, Kotagal said, given President Donald Trump’s April order that EEOC cease enforcement of disparate impact liability. “I think they may all be vulnerable,” she said, explaining that this could include the agency’s guidance on national origin discrimination, its guidance on consideration of arrest and conviction records and even its compliance manual.
EEOC’s strategic enforcement plan, a now largely abandoned roadmap, may see formal rescission as well, Kotagal said. The Trump administration’s enforcement priorities — among them, combating anti-American bias and defending “the biological and binary reality of sex” — are set to replace Biden-era priorities.
EEOC has a “very busy” agenda ahead for the coming weeks and months, but the commissioners’ work won’t be entirely partisan, Kotagal said, pointing to opportunities for bipartisan work on such efforts as pregnancy accommodation. Some other efforts, however, she said she expects to “fiercely oppose.”
