Trump Fires EEOC Commissioners, Testing Constitutional Limits on Presidential Power Over Independent Agencies

Seyfarth Synopsis: On the afternoon of Tuesday, January 28, 2025, media reports confirmed that President Trump has fired EEOC Commissioners Charlotte Burrows and Jocelyn Samuels, both Democratic appointees. Samuels confirmed her dismissal via her X (formerly Twitter) account. President Trump’s unprecedented move at the EEOC follows similar action yesterday and today at independent agencies such as the National Labor Relations Board (NLRB) and the Private Civil Liberties Oversight Board (PCLOB). The dismissals at the EEOC will almost certainly be challenged in court. They open the door for President Trump to secure a Republican majority on the EEOC as soon as his nominees are confirmed by the Senate. Alternately, President Trump may choose to leave the EEOC without a quorum, unable to exercise its statutory functions.

President Trump also fired EEOC General Counsel Karla Gilbride, just as he fired NLRB General Counsel Jennifer Abruzzo earlier this week. President Trump’s dismissal of the General Counsels of the EEOC and NLRB follows President Biden’s dismissal of both EEOC GC Sharon Gustafson and NLRB GC Peter Robb at the start of his term.

In a statement released by her lawyers, Commissioner Burrows said that she “will explore all legal options available to me”. In her statement on X (formerly Twitter), Commissioner Samuels said, “Removing me from my position before the expiration of my Congressionally directed term is unprecedented, violates the law, and represents a fundamental misunderstanding of the nature of the EEOC as an independent agency…I am considering my legal options”.

The EEOC was created by Title VII of the Civil Rights Act of 1964, which specifies that EEOC Commissioners serve for fixed 5-year terms. There is no provision in Title VII that allows the President to remove a Commissioner “for cause”. With President Trump’s firing of Commissioners Burrows and Samuels, the EEOC currently lacks a quorum because it only has two members – the Republican Acting Chair, Andrea Lucas, and the Democratic Commissioner, Kalpana Kotagal. Title VII requires three members of the five-member Commission to form a quorum; without a quorum, the EEOC is unable to act in furtherance of its statutory duties.

1. Without a Quorum, EEOC Litigation Is Curtailed but Not Halted

 First, employers currently involved in EEOC litigation or investigations should remember that these efforts are conducted by EEOC career staff, who will continue the day-to-day activity of the agency unless and until further action is taken. We anticipate that the EEOC’s lack of a quorum will not affect its routine investigations or pending litigation, at least in the near term.

With President Trump’s firing of EEOC General Counsel Karla Gilbride, the EEOC’s Deputy General Counsel, a career EEOC official, becomes the Acting General Counsel pursuant to the Federal Vacancies Reform Act. He will be able to exercise all of the authority of the General Counsel to continue conducting and developing litigation.

The EEOC General Counsel is responsible for conducting EEOC litigation,[1] but the Commission itself must authorize the initiation of new lawsuits. Nonetheless, not all lawsuits must get the Commission’s explicit vote of approval. That is because the Commission has delegated some of its authority pursuant to a formal document last modified on January 13, 2021, under a Republican majority. The current litigation delegation anticipated that the Commission might lack a quorum and specifically addressed how to proceed in that scenario.

Under this delegation framework, in the absence of a quorum, the General Counsel may not initiate several critical categories of cases. These categories include all recommendations for the Commission to file an amicus brief, all cases alleging systemic discrimination or “pattern-or-practice” discrimination, cases requiring major expenditure of agency resources, cases taking positions contrary to Circuit precedent, and cases presenting novel or unsettled legal issues likely to generate public controversy. The General Counsel has authority to file cases that do not fall into these categories.

The practical effect is straightforward: without a quorum, while the General Counsel has authority to initiate routine EEOC litigation without Commission approval, filing the most significant and far-reaching cases require a Commission vote. Without a quorum, the Commission cannot vote to approve the filing of those cases. However, employers should note that this limitation applies only to the actual filing of federal court complaints. The General Counsel and EEOC staff retain full authority to investigate potential violations and develop these cases right up until the point when Commission approval would be needed to commence litigation.

2. Without a Quorum, the EEOC Cannot Initiate Rulemaking or Revoke or Modify Formal Guidance

The absence of a quorum significantly constrains the EEOC's ability to modify its formal positions and regulatory framework. Any issuance, modification, or revocation of formal guidance requires Commission approval, as does the initiation of notice-and-comment rulemaking under the Administrative Procedures Act. This limitation's practical impact is already visible: shortly after President Trump appointed Andrea Lucas as Acting Chair, the EEOC's website was updated to prominently note that its “Enforcement Guidance on Harassment in the Workplace” was “approved by the Commission on April 29, 2024, by a 3-2 vote” and that “any modification must be approved by a majority vote of the Commission.” Without a quorum, this guidance – and all other formal EEOC guidance – remains effectively frozen in place.

The same constraint applies to the EEOC’s regulatory initiatives. Without a quorum, the EEOC cannot commence notice-and-comment rulemaking, so, for instance, it could not begin the process to revise its interpretive guidance regarding affirmative action plans. Similarly, the EEOC would be unable to initiate proceedings under the Paperwork Reduction Act to modify or revoke its EEO-1 data collection requirement, which currently extends through 2026.

However, should President Trump choose to nominate additional Commissioners - and should they be confirmed by the Senate - a new Republican majority would restore the EEOC’s quorum and its ability to drive forward with the Trump administration’s priorities.

3. Acting Chair Lucas Can Issue or Revoke Technical Assistance On Her Own Authority

A critical distinction exists between formal guidance and EEOC “technical assistance.” While formal guidance requires Commission approval, technical assistance documents fall solely under the Chair's authority and can be issued or revoked without a Commission vote.

The practical impact of this distinction became immediately apparent on January 27, 2025, when numerous EEOC technical assistance documents quietly disappeared from the agency's website. This swift action under Acting Chair Lucas's authority resulted in the removal of several significant documents from the EEOC’s website: all technical assistance regarding artificial intelligence and its intersection with the ADA and Title VII, the agency's report on technology sector discrimination, its interpretations applying Bostock to LGBTQ workers, and its 2015 fact sheet explaining the EEOC’s position regarding a transgender employee’s access to restrooms.

Upon being appointed by President Trump as Acting Chair, Andrea Lucas said, “Consistent with the President’s Executive Orders and priorities, my priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single‑sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.”

On the evening of January 28, the EEOC issued a press release titled, “Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace,” in which Acting Chair Lucas confirmed her removal of certain “materials promoting gender ideology” on the Commission’s websites and elsewhere. Her press release further acknowledged that, based on her existing authority, the Acting Chair could not unilaterally revoke documents such as the EEOC’s Enforcement Guidance on Harassment in the Workplace, the EEOC’s Strategic Plan for 2022-2026, or the EEOC’s  Strategic Enforcement Plan Fiscal Years 2024-2028.

However, using her authority as Acting Chair, Lucas can still issue new technical assistance documents that align with these priorities without requiring a quorum or Commission approval.

4. EEOC Firings Are Part of a Coordinated Strategy to Assert Presidential Control Over Independent Agencies

President Trump's firing of EEOC Commissioners appears to be part of a broader strategy to assert expansive presidential removal authority over multi-member bipartisan independent agencies, each with similar statutory structures to the EEOC.

Today, on January 28, 2025, there have been confirmed media reports that President Trump fired Democrat Gwynne Wilcox at the National Labor Relations Board (as well as firing NLRB General Counsel Jennifer Abruzzo). President Trump’s firing of Member Wilcox also leaves the NLRB without a quorum, and leaves the 5-member NLRB with a single Republican and a single Democrat.

Last week, the media reported that President Trump had asked each of the three Democratic members of the Privacy and Civil Liberties Oversight Board (PCLOB) to resign. Media reports on January 28, 2025 confirmed that President Trump had fired all three of these PCLOB members.

The statutory structure of the NLRB and the PCLOB closely parallel that of the EEOC: all are multi-member agencies whose members are nominated by the president and confirmed by the Senate to fixed terms, and whose statutes require bipartisan composition.

Critically, like Title VII which created the EEOC, the PCLOB's governing statute contains no explicit “for cause” removal protections for its members. We note that the statutory text of the NLRA provides, “Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” There is no parallel language in Title VII or the statute that created the PCLOB. According to a media report published on the evening of January 28, 2025, President Trump’s letter to Member Willcox asserted that the law “does not operate as a restriction on my ability to remove Board members.”

5. The Constitutional Stakes: Presidential Power and the “Unitary Executive” Versus Independent Agencies

President Trump's coordinated removal of officials across multiple independent agencies appears designed to test and potentially expand presidential removal power under the “unitary executive” theory. This constitutional theory holds that Article II of the Constitution requires the President maintain direct control over all executive branch officials, including through unrestricted removal authority, notwithstanding Congress’ attempt to pass laws to the contrary.

The Supreme Court's 2020 decision in Seila Law v. CFPB, 140 S. Ct. 2183 (2020), expanded this theory by invalidating removal protections for single-director agencies, when the Supreme Court held that Congress's creation of an independent agency led by a single Director who could be removed only for cause violated Article II's separation of powers. Applying this holding, Circuit Courts of Appeals upheld President Biden's firing of the NLRB GC, ruling that the presence of a statutory term limit alone, without explicit removal protection, does not restrict the President’s removal power. See Exela Enter. Sols. v. NLRB, 32 F.4th 436 (5th Cir. 2022), Aakash, Inc. v. NLRB, 58 F.4th 1099 (9th Cir. 2023) and Frank Schaub Foods v. NLRB, 84 F.4th 962 (D.C. Cir. 2023).

However, multi-member commissions like the EEOC have historically been protected by the Supreme Court's 1935 decision in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), which upheld Congress's power to create independent boards and commissions whose members the President could not remove at will.  Humphrey’s holding upheld the structure of the Federal Trade Commission, and relied on the fact that in addition to being a multi-member board, the FTC’s mission included broader “quasi-legislative” and “quasi-judicial” functions. Certainly, the EEOC possesses similar characteristics – its rulemaking activities can be seen as “quasi-legislative” and the EEOC issues quasi-judicial appellate opinions when it decides EEO claims brought by federal employees.

President Trump’s attempted firing of EEOC, NLRB, and PCLOB members may eventually result in litigation that invites the Supreme Court to revisit (and overturn) Humphrey’s. We already know that there are at least two Justices on the Supreme Court poised to overturn Humphrey’s. In his concurrence in Seila Law, Justice Thomas wrote a concurrence that explicitly rejected the entire premise of Humphrey's distinction between “quasi-legislative” and “quasi-judicial” functions, arguing this was an artificial distinction unsupported by constitutional text or history, and that Humphrey's  should be overruled. Justice Gorsuch joined in Justice Thomas’ concurrence.

While Justices Roberts, Alito, and Kavanaugh did not join in this concurrence, subsequently, they have joined opinions enthusiastically supporting the “unitary executive” theory as applied to President Trump’s actions. See e.g., Trump v. United States, 603 U.S. ___ (2024) (granting broad Presidential immunity for "official acts").

Will the current Supreme Court overturn or distinguish Humphrey's as applied to President Trump’s firing of EEOC Commissioners Charlotte Burrows and Jocelyn Samuels? Employers should expect significant litigation over the validity of these removals, creating a period of uncertainty until the courts resolve the issue.

6. Implications for Employers

Amidst all of this uncertainty, employers should remember that day-to-day EEOC litigation and investigations are conducted by career staff, who will continue that routine activity unless and until further action is taken. We will continue to monitor how President Trump’s moves to decrease the size of the federal workforce and to eliminate federal programs impact the EEOC and its mission.

For more information about the EEOC, its composition and litigation activity, please see Seyfarth Shaw’s EEOC-Initiated Litigation - 2025 Edition or contact your Seyfarth attorney or the authors of this post.

[1] Title VII provides an exception for EEOC litigation before the Supreme Court, which is handled by the Attorney General.