President Trump Nominates Assistant U.S. Attorney Panuccio to Serve as EEOC Commissioner

Quick Hits

• President Trump nominated Brittany Panuccio, an assistant U.S. attorney in Florida, to serve as an EEOC commissioner.
• The EEOC currently has only two commissioners, one less than needed for a quorum.
• Once the EEOC has a quorum, it will be able to engage in rulemaking, policymaking, and issuing (and, in some instances, rescinding) official guidance that advances the administration’s agenda.

By statute, the EEOC is composed of five political appointees: a chair, vice chair, and three commissioners. Title VII of the Civil Rights Act of 1964 dictates that no more than three commissioners may be from the same political party, and once confirmed, they serve five-year terms on the Commission. Thus, in addition to the EEOC’s acting chair, Andrea Lucas, if Panuccio is confirmed, the president can nominate another Republican to serve as a commissioner.

Further, Title VII demands that for there to be a quorum at the agency, there must be three active commissioners. Thus, Panuccio’s confirmation will resolve the EEOC’s current dilemma, i.e., being unable to vote on topics such as official guidance, policies, regulatory proposals/rulemaking, subpoena enforcement, and litigation (although by memorandum of understanding, much of the litigation decision-making has been delegated to the general counsel in the absence of a quorum).

We anticipate, based on statements made by Acting Chair Lucas and other informal guidance, that once the Commission has a quorum, it will make certain types of charges, litigation, and other policy matters a priority. This prioritization includes:

• focusing on investigating and litigating with an expanded definition of what constitutes an adverse action when considering employer diversity, equity, and inclusion (DEI) programs (e.g., where a DEI program results in one protected class failing to receive the same or similar mentorship or feeling ostracized or discriminated against because of such programs);
• eliminating systemic investigation and litigation of otherwise neutral employer policies that may have a disparate impact on a protected class;
• eliminating recognition of “gender identity” as it relates to the EEOC’s sexual harassment guidance and similar guidance, particularly concerning restrooms, locker rooms, sleeping quarters, and other sex-specific workplace facilities, which, in the view of Acting Chair Lucas, impinges on the rights of women;
• eliminating existing EEOC policy, guidance, and regulations associated with abortion as a pregnancy-related condition under the Pregnant Workers Fairness Act; and
• an increased focus on investigation and litigation of employment discrimination based on religion or national origin (e.g., Judaism and American), race (particularly those employees who feel preferential programs exclude them in the name of DEI), and sex (particularly from those employees who think that the focus on gender identity, transgender rights, and sexual orientation has impinged on their rights).

The lack of a quorum has prevented the EEOC from investigating charges consistent with Acting Chair Lucas’s perspective concerning various active agency guidance (several of which she condemned in public statements), enforcing administrative subpoenas (due to a 2024 delegation of authority), pursuing noncontroversial, nonsystemic, noncostly litigation (due to a 2021 continuing resolution); and seeking dismissal of certain cases approved under prior EEOC leadership.

More importantly, the lack of a quorum has kept the Commission from engaging in rulemaking, policymaking, and issuing (and, in some instances, rescinding) official guidance that furthers the current administration’s agenda. Such a lack of quorum has seemingly caused confusion and a state of “unknown” in the employment law community (given Acting Chair Lucas’s statements without the proper quorum to push such agenda items), as well as inhibited the EEOC from voting to pursue controversial, costly, and systemic lawsuits.

If Panuccio is confirmed, the EEOC will be able to discuss and vote on various matters. While we do not know how Panuccio will vote, we expect significant changes in policy and internal operations within the EEOC that are consistent with the areas identified above. Employers can expect the EEOC to begin working on rescinding guidance and policies that run afoul of the current administration’s agenda, adopting updated guidance and policies, and proposing new and updated regulations. Further, there may be a change in the types of “priority” cases within the EEOC’s enforcement and litigation divisions.

While the EEOC has no authority to overturn case law, it certainly can become a burden on employers’ resources during investigations of charges of discrimination.

By continuing to ensure policies and practices are lawful and compliant with antidiscrimination statutes, employers should be able to achieve the appropriate balance in the days to come.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employment Law and Governmental Affairs blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ New Administration Resource Hub.

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