Equal Employment Opportunity Commission Acting Chair Andrea Lucas has directed agency officials to compile a list of cases in line with her own personal priorities for the agency, two sources familiar with the matter tell Talking Points Memo. Those priorities include “defending the biological and binary reality of sex and related rights” and “rooting out unlawful DEI-motivated race and sex discrimination,” according to a document reviewed by TPM.
It is the latest example of a step taken by the acting EEOC chair, who was appointed by President Donald Trump, to reorient the worker-protection agency toward pursuing Trump’s culture-war priorities. And, with three commissioner slots currently vacant, the directive suggests Lucas is shifting the agency’s enforcement priorities unilaterally in absence of a quorum, which would violate longstanding agency policy, EEOC veterans told TPM.
It is “circumventing the agency’s agreed-upon process,” said Jenny Yang, a former EEOC chair and commissioner and current partner at Outten & Golden LLP. “It is exceeding the authority of the chair.”
The EEOC did not respond to requests for comment.
The EEOC is the sole federal agency tasked with enforcing workers’ rights to be free from discrimination under the Civil Rights Act of 1964. Amid the Trump administration’s quest to root out DEI policies and its attacks on transgender people’s rights, the agency has also shifted its focus.
A recent email to EEOC staff reviewed by TPM describes Lucas’s priorities, and requests agency staff curate lists of cases in line with those priorities. The priorities are listed as “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.”
The email says that it is “critical” that those doing the work of screening and investigating claims are “actively investigating charges that fall within Acting Chair Lucas’s stated priorities.”
Acting Chair Lucas sent the email to EEOC field office directors, according to one EEOC employee. It requested that they identify their “‘top 10’ identified Chair priority investigations.”
A list of each district’s top 10 cases has now been compiled, two EEOC employees confirmed, and it is being used as a way to track and monitor the cases that the field office directors came up with.
This directive, made unilaterally by an acting EEOC chair, is a break with agency policy, former agency officials told TPM. The EEOC has a document called the Strategic Enforcement Priorities (SEP) that is voted on by a quorum of commissioners and sets out the issues to which the agency will devote its resources.
The EEOC is an independent executive branch agency overseen by a bipartisan panel of five Senate-confirmed commissioners, one of whom serves as chair. It takes three commissioners for the agency to have a quorum. Trump fired two Democratic commissioners in February, and the EEOC currently only has two commissioners.
Setting priorities outside of, or in conflict with, the SEP runs afoul of the rules of the agency and is outside of Lucas’s authority, people who previously worked for the EEOC told TPM.
“All chairs come in with a wish list, but they work with the commission,” said David Lopez, former EEOC general counsel and current Rutgers Law School professor. “The chair can’t set enforcement priorities, it has to be done by the commission.”
The SEP is voted on by the commissioners every four or five years. Commissioners typically hold meetings with stakeholders and the public as the plan is compiled to identify the most pressing issues the agency should focus on. The current document was the result of “a pretty deliberative process of policymaking,” Lopez said.
Because the SEP is voted on by the commissioners, it holds more weight than a directive from a chair and has generally been understood to be something that the whole agency, including the chair, has to follow until and unless commissioners vote through an updated or changed document. “That should govern what the EEOC does,” Lopez said. Compiling a list of cases related to priorities that fall outside of the SEP, on the other hand, is “actually working contrary to the Strategic Enforcement Plan,” he said. It means Lucas is “no doubt ignoring the policies established by a bipartisan commission.”
The current SEP has a focus on defending workers against harassment based on gender identity, and it says the EEOC will “support employer efforts to implement lawful and appropriate diversity, equity, inclusion, and accessibility (DEIA) practices.” The document mentions religious discrimination under its emerging and developing issues, but it names both antisemitism and Islamophobia as equal problems to guard against. Meanwhile, it doesn’t mention anti-American national origin discrimination, and two former EEOC officials said they had seen no evidence that this is a rising problem that deserves special attention.
The current SEP is in effect until 2028. Lucas could seek to change it, but because, after Trump’s firings, just she and Democratic Commissioner Kalpana Kotagal remain, she lacks a quorum to vote anything through until new commissioners are nominated by Trump and approved by the Senate.
There are other documents that should guide the agency’s work, such as an update on guidance around harassment that, when it was voted on a year ago, included harassment based on gender identity as a form of harassment the agency considered to be illegal. Lucas has vowed to strike those provisions when she has a quorum, although a Trump-appointed federal judge in Texas recently issued a ruling striking them down for now.
Lucas’s priority of pursuing cases based on the “biological and binary reality of sex” potentially holds even larger problems: It likely conflicts with Supreme Court precedent. In a 2020 decision in the case of Bostock v. Clayton County, the court found that Title VII of the Civil Rights Act of 1964, the law that the EEOC enforces, protects transgender people under the ban on sex discrimination. Even a quorum of the EEOC commission doesn’t have the authority to deviate from Supreme Court findings.
But the list of cases is not the first time Lucas has set this priority publicly. In January, she announced that one of her priorities for the agency is “to defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.” Under Lucas, the EEOC moved to dismiss seven lawsuits on behalf of transgender workers that it had been pursuing before she became acting chair, and it has also paused investigating and moving forward on any previous or new claims of gender identity-based discrimination.
Lucas also sent letters to 20 law firms in March requesting information about their DEI programs that, she said, “may entail unlawful disparate treatment.” In a letter to Lucas in response, seven former EEOC officials, including Yang and Lopez, said the letters “exceed your authority.”
Experts and EEOC employees TPM spoke with also expressed concern that, by focusing on the list of cases in line with Lucas’ priorities, the agency will have fewer resources for others. The EEOC’s resources have long been very limited, which means that anything that gets prioritized inevitably draws resources away from other issues. Even adding one or two additional priorities to what field offices are meant to be pursuing will reduce their ability to work on other issues. Given that the agency is “perpetually underfunded,” devoting any more resources to these cases would “take the resources away from perhaps a case involving sexual harassment of a woman or rac[ial] black discrimination or anti-Muslim discrimination,” Lopez said.
Yang agreed. “There is absolutely a resource choice,” she said.
The former priority is mostly grounded in ascientific fantasy – there is no ‘binary reality’ in the biological basis of sex and gender, a reality that exists on a spectrum among humans (w/ quirks here and there) and can be wildly different or fluid in other species – and the latter is not a thing unless by ‘unlawful’ she is referring to the history of favoring Whites which seems doubtful given Ms Lucas’s own history.
ETA: I am asked now and then, often by former students, why Republicans or reactionaries in general seem so opposed to science and usually answer that AFAIK they do not oppose science if it agrees with them or is under their control: the problem for them is that science is, in principle if not always in reality, a source of authority outside their own and authoritarians cannot tolerate that for rather obvious reasons; there can be only one authority.
Fuck their hate. I hope I am wrong about what happens after you die, I hope they are right, and I hope they go to their hell sooner rather than later.
I smell a bigoted toy head.
Hey look! It’s one of the wives from the Handmaid’s Tale.
When do the lawsuits start?