Full Quorum at the EEOC Brings Increased Activity

The US Equal Employment Opportunity Commission has significantly increased its activity since regaining a quorum late last year, including a series of actions taken over the last two months that further the administration’s priorities and centralize authority in the Commission and Chair.

These actions include:  

• Rescinding its prior voting procedures to provide the Chair with the authority to set public meetings and decide what issues will be voted on without public discussion
• Modifying the delegation of legal authority to the EEOC General Counsel and returning power to the Chair and commissioners
• Rescinding its “Enforcement Guidance on Harassment in the Workplace,” which had aimed to clarify legal issues related to harassment and provided examples of unlawful conduct, including misgendering and denial of access to facilities consistent with an individual’s gender identity
• Overturning a federal sector appellate decision, which had held that Title VII prohibits federal agencies from excluding employees from restrooms and locker rooms that correspond with their gender identity
• Sending a letter signed by Chair Andrea Lucas to Fortune 500 companies reminding them of their obligations under Title VII with respect to DEI employment policies, programs, and practices
• Moving to enforce subpoenas against an apparel company and large life insurance company in ongoing investigations into their corporate DEI practices
• Filing a lawsuit alleging that a beverage company discriminated against male employees by excluding them from a two-day offsite event for female employees in September 2024.

We anticipate that the EEOC will remain highly active in the upcoming year as it continues to implements its priorities.

EEOC PROCEDURAL DEVELOPMENTS AND SUBSTANTIVE GUIDANCE

Voting Procedures

The EEOC held its first public meeting of the second Trump administration on January 14, 2026, at which the Commission voted 2-1 to rescind voting procedures enacted at the end of the Biden administration. The prior procedures allowed commissioners to call for public discussion on proposed policy changes and established timelines for document review before votes.

With those procedures now rescinded, the Chair has authority to set agendas and dates for public meetings, call public meetings, and decide what issues will be voted upon without public discussion or visibility.

Litigation Authority

On January 21, 2026, the EEOC voted 2-1 to approve a resolution modifying the delegation of legal authority and allowing the Commission to approve or disapprove every new lawsuit. This is a significant departure in practice that removes decision-making power from the field.

For more than 30 years, the Commission had delegated litigation authority to the General Counsel and allowed further delegation to Regional Attorneys stationed throughout the country. Now, the General Counsel can submit litigation recommendations to the Commission, but it can only proceed with such litigation upon approval by the Commission.

Harassment Guidance

On January 22, 2026, the EEOC voted 2-1 to rescind its “Enforcement Guidance on Harassment in the Workplace.” Approved in 2024, the original guidance aimed to clarify legal issues related to harassment and provided examples of unlawful conduct.

The majority justified the rescission by arguing that the guidance exceeded Title VII’s authority, particularly in its interpretation of harassment related to gender identity. Commissioner Panuccio referenced a 2025 decision by the US District Court for the Northern District of Texas, which vacated parts of the guidance claiming it expanded the definition of “sex” beyond the biological binary and imposed requirements on employers regarding dress, bathroom, or pronoun requests.

The rescission also fulfilled a requirement of Executive Order 14168, which directed the EEOC to rescind the portions of the guidance that were inconsistent with the executive order’s policy that there are only two sexes, male and female, as assigned at birth.

At the Commission meeting, all commissioners emphasized their commitment to combating unlawful harassment, with Chair Lucas affirming the EEOC’s dedication to enforcing federal employment laws against discrimination and harassment. She did not, however, explain why the Commission chose to rescind the entire guidance, rather than just the sections of the guidance related to gender identity.

Federal Sector Decision Regarding Intimate Spaces in Federal Workplaces

On February 26, 2026, the EEOC voted 2-1 to approve a federal sector appellate decision, Selina S. v. Driscoll, Secretary, Department of the Army, which held that Title VII permits a federal agency employer to maintain single-sex bathrooms and similar intimate spaces based on sex rather than gender identity.

The decision further held that Title VII permits a federal agency employer to “exclude employees, including trans-identifying employees, from opposite sex facilities.” The decision overturns the EEOC’s 2015 decision Lusardi v. Department of the Army, which had concluded that excluding an employee from the restroom that corresponded with their gender identity constituted unlawful sex-based discrimination in violation of Title VII.

Selina S. represents a significant policy change for the EEOC, consistent with the administration’s policy on “gender ideology” set forth in EO 14168. While the decision is limited to federal agencies subject to the EEOC’s administrative complaint process, the analysis strongly suggests that the Commission would analyze a private sector charge alleging similar facts in a similar fashion.

Letter to Fortune 500 Companies

On February 26, 2026, Chair Lucas issued a letter to CEOs, general counsel, and board chairs of the 500 largest US corporations (by revenue) reminding them of their obligations under Title VII with respect to employment policies, programs, and practices labeled as “DEI” and other similar titles.

The letter directed recipients to education resources published by the EEOC and US Department of Justice regarding how employers can comply with their obligations under federal employment civil rights laws, including with respect to any current or past DEI policies, programs, or practices.

In a footnote, Chair Lucas noted that the letter was being distributed broadly to hundreds of the country’s largest employers with varying employment practices and programs, and that a company’s receipt of the letter is not intended to suggest that the company has engaged in illegal conduct. While the letter has no legal force, it underscored the EEOC’s commitment to fully utilizing all statutory tools to fulfill the Commission’s mission, including both education and compliance efforts and administrative enforcement processes and litigation. 

EEOC ENFORCEMENT ACTIVITY

Subpoenas in DEI Cases

In February 2026, the EEOC filed a subpoena enforcement action to compel a sports apparel company to produce information in the EEOC’s ongoing investigation of the company’s DEI programs. The subpoena stems from a commissioner’s charge that then-Commissioner Lucas filed against the company in 2024. The charge alleged that the company’s DEI programs, including its 2020 efforts to diversify its workforce, discriminated against white workers on the basis of race.

Pursuant to the charge, the EEOC sent the company three separate requests for information (RFIs) between December 2024 and June 2025 seeking information about its structure, programming, and DEI practices. According to the EEOC the company had provided some but not all of the information requested, leading to the EEOC issuing a subpoena in September 2025 seeking to compel it to fully respond to the RFIs.

The subpoena sought broad categories of documents relating to the company’s organization structure, workforce demographics, compensation, workplace terminations, executive compensation processes based on representation data, diverse slates process, certain employment-related programs, and its use of “representation data” as referred to in its fiscal year 2020 Impact Report.

In response, the company filed a Petition to Revoke the Subpoena on October 7, 2025. It argued that the requests were too broad in scope and/or time period, as well as likely being time barred.

The company also argued that the EEOC had failed to confer with the company, had included new RFIs in its subpoena, and that the subpoena violated its due process right to fair notice (as well as procedural irregularities). The company further argued that the EEOC’s pursuit of a disparate-impact claim violates EO 14281, which directs federal agencies, including the DOJ and EEOC, to eliminate the use of disparate-impact liability in enforcement and regulations to the maximum extent possible. 

On January 5, 2026, the EEOC granted the petition in part and denied it in part. In the decision, the Commission confirmed the validity of its charge on the basis that it asserts a primary theory of disparate treatment based on intentional discrimination against white individuals and that the disparate impact theory is alleged only in the alternative.

With respect to the statute-of-limitations argument, the EEOC stated that “information relevant to an investigation of discriminatory employment practices is not limited to the applicable statute of limitations,” and it made a distinction between “the scope of the EEOC’s investigatory power” and “its power to seek relief, which is limited by an applicable statute of limitations.”

The EEOC also clarified that a meet and confer was not a prerequisite to issuing a subpoena and stated that it is irrelevant that the subpoena seeks documents or information never previously requested. The EEOC did, however, modify some of the requests and defined terms in response to the company’s petition. Following the EEOC’s determination, the company submitted a 31-page response renewing its objections and making additional objections based on the modifications. The EEOC then filed its subpoena enforcement action.

The EEOC’s actions against the company mirror a similar subpoena enforcement action it filed against a large life insurance company at the end of last year. That action stems from the investigation of a charge of discrimination alleging discrimination against a single white male employee, but which the EEOC expanded into an investigation of all the company’s DEI programs and practices.

The EEOC has also continued to seek enforcement of its subpoena for the names of Jewish employees at a university. Then-Commissioner Lucas filed a charge against the university in 2023, alleging that the university allowed its Jewish employees to face harassment on campus in the wake of protests regarding the Israel-Hamas conflict. While the university submitted dozens of documents in response to the EEOC’s RFIs, it refused to provide any identifying information relating to Jewish employees or membership rosters of Jewish organizations. 

The EEOC filed its subpoena enforcement action in federal district court in 2025, and US District Judge Gerald R. Pappert of the Eastern District of Pennsylvania held a hearing on the EEOC’s motion on March 10, 2026. EEOC argued that the information it was seeking was squarely within the scope of its investigatory authority.

Complaint Based on Gender-Focused Company Retreat

Also in February, the EEOC filed a complaint alleging that a company had violated Title VII by denying male employees equal compensation, terms, conditions, or privileges of employment. 

The Commission alleges that the company discriminated against male employees by excluding them from an employer-sponsored event at a resort and casino that included a social reception, team-building exercises, recreational activities, and presentations given by internal and external corporate executives about their career paths.

The complaint alleges female employees were privately invited and excused from work with pay without using leave, had their hotels paid for, and received other benefits such as food and beverages, while male employees were not invited or provided any associated benefits. The complaint alleges approximately 250 female employees attended, and that the charging party and other male employees would have attended if invited, resulting in damages to the male employees. 

The complaint is consistent with the position the EEOC articulated in its 2025 DEI guidance, namely that any employment decision based, in whole or in part, on race or gender constitutes discrimination under Title VII, regardless of the level of alleged harm.

KEY TAKEAWAYS

Recent developments at the EEOC reflect an active Chair and Commission focused on advancing the administration’s interpretation of Title VII, particularly with respect to DEI and “gender ideology.” Prudent employers should monitor the EEOC’s policy pronouncements and enforcement efforts and evaluate the extent to which any of the employers’ programs or activities create legal risk.

These assessments should include input from senior leadership, human resources, and legal advisors, to determine whether any modifications may be appropriate. Morgan Lewis stands ready to assist.

Stay Informed

Visit our US Administration Policies and Priorities resource center and subscribe to our mailing list for the latest on programming, guidance, and current legal and business developments.