New EEOC Chair, GC expected in Trump administration

President-elect Donald Trump is expected to terminate the current Equal Employment Opportunity Commission (EEOC) General Counsel (GC) Karla Gilbride if she won’t resign on January 20, 2025, and to appoint the only Republican currently on the EEOC, Andrea Lucas, as Acting Chair. Because the Biden administration left the second Republican seat on the commission open, the incoming president is expected to nominate a second Republican to the open EEOC seat. However, all three Democratic commissioners have terms that will lead them to retain their majority on the commission into 2026.

The question is whether the new president will decide to fire one of the current Democratic commissioners— Chair Charlotte Burrows, Vice Chair Jocelyn Samuels, or newest Commissioner Kalpana Kotagal—to shift the EEOC’s power from the Democrats to the Republicans. Although each of the three Democratic commissioners have a term, there’s an argument that it’s unconstitutional to bar the president from firing them under the Appointments Clause of the U.S. Constitution. The Supreme Court in 1935 protected the safeguards for Federal Trade Commission commissioners in Humphrey’s Executor, but recently the Supreme Court has indicated it thinks the decision is incorrect.

Even if the president decides to fire one or more of the Democratic EEOC commissioners, the firing would  be challenged.

Future of PWFA regulations, harassment guidance